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ELRCDismissedCase No ELRCC/41/2018· [2021] KEELRC 2371 (KLR)

Mark Bushuru Angatia v Frodak Kenya Limited [2021] KEELRC 2371 (KLR)

Employment and Labour Relations Court
Invalid Date
JAJ. N. Abuodha
1,948 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An Eldoret employment court refused to block execution of a costs decree, ruling that issues never raised in court cannot become grounds of appeal.

What this practically means

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Executive summary

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By a Motion dated 15th March 2021, the respondent sought a stay of execution of the Court's ruling of 6th November 2020, setting aside of that ruling, recall of warrants of attachment and sale, and an injunction barring execution of the decree pending an intended appeal to the Court of Appeal. The ruling of 6th November 2020 had dismissed an application dated 21st December 2019 seeking stay of the judgment delivered by Mbaru J on 29th June 2018. The respondent, through its Managing Director Frederick Otieno Onyango, deponed that its property had been proclaimed by Eshikoni Auctioneers on 10th March 2021, that it was unaware the review motion had been dismissed until the proclamation, that it had lodged a notice of appeal, that it would suffer substantial loss as the claimant was a man of humble means unable to refund the decretal sum, and that the execution was irregular for want of a written application under Order 22 rule 7 and a Notice to Show Cause under Order 22 rule 18 of the Civil Procedure Rules. Mr Kisuya for the respondent relied on Securex Agencies and Grand Creek LLC on execution procedure and NIC Bank v Wasike on substantial loss. Mr Kagunza for the claimant opposed, citing material non-disclosure of a consent of 24th October 2019 fixing party and party costs at Kshs. 130,000/=, a prior dismissed set-aside application of 28th November 2019, and lack of clean hands, relying on Rajesh Rughani v Fifty Investment. The Court held that the only arguable point raised — whether the Court's review jurisdiction under section 16 of the ELRC Act and rule 33 could be ousted by consent — was never canvassed in the application decided on 6th November 2020 and could not be a ground of appeal. Observing repeated attempts to frustrate execution, the Court dismissed the Motion with costs.

Key legal issues

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01

Whether an issue not raised or determined in the ruling under appeal can be an arguable ground of appeal for purposes of stay pending appeal

Holding

It cannot; the question whether the Court's review jurisdiction could be fettered by the consent on costs was never canvassed in the application decided on 6th November 2020, so it is not an arguable subject on appeal.

Reasoning

The Court traced the ruling of 6th November 2020, which decided an application dated 21st December 2019 seeking stay of the judgment of 29th June 2018. That application raised nothing about the consent of 24th October 2019 on party and party costs of Kshs. 130,000/=. The Court had only referred to the consent in passing. Since the ouster question was never litigated, it cannot support a stay pending an appeal on that ground.

p. 3
02

Whether a litigant can rely on the mistakes of its advocates to excuse delay and repeated applications

Holding

The Court declined to entertain the excuse, observing a pattern of attempts by the respondent to postpone or frustrate execution of the decree.

Reasoning

The respondent claimed it only learned of the dismissal of its review application upon proclamation of its property and blamed its erstwhile advocates. The Claimant countered that this was a lame excuse with no evidence of steps taken by the litigant, and that the respondent had perfected the art of changing advocates to file successive similar applications. The Court found the history rocky since the 2018 judgment and refused to be a party to the delaying process.

p. 3

Legal principles established

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  • A matter that was never the subject of the application before the Court and was never canvassed cannot be made a ground of appeal.

Court orders

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  1. 1.The Motion dated 15th March, 2021 is dismissed
  2. 2.Costs of the application to the Claimant

Authorities

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Legislation

  • Employment and Labour Relations Court Actsection 16
  • Employment and Labour Relations Court (Procedure) Rulesrule 33
  • Civil Procedure Rules, 2010Order 22 rule 7
  • Civil Procedure Rules, 2010Order 22 rule 18(1)
  • Civil Procedure Rules, 2010Order 42 rule 6

Cases cited (4)

  • Securex Agencies Kenya Ltd. Vrs. Otieno Wambedha
    (2019) eKLR
  • Grand Creek LLC and Another V Nathan Chesangmoson
    (2015) eKLR
  • National Industrial Credit Bank Ltd. V. Aquinas Francis Wasike and Another
    (2006) eKLR
  • Rajesh Rughani V Fifty Investment and Another
    (2016) eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court; notice of appeal lodged to the Court of Appeal; section 16 of the Employment and Labour Relations Court Act and rule 33 of the ELRC (Procedure) Rules invoked on review jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mark Bushuru Angatia v Frodak Kenya Limited [2021] KEELRC 2371 (KLR)", Case Analysis (). Case No ELRCC/41/2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2371/eng@2021-10-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.