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ELRCAllowedNotice of Motion dated 8th September, 2021 (ELRC at Kisumu)· [2022] KEELRC 789 (KLR)

David Wepukhulu v Kundan Singh Construction Ltd [2022] KEELRC 789 (KLR)

Employment and Labour Relations Court
17 February 2022
CBChristine N. Baari
1,084 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court released Kshs 1.2 million held in a joint advocate account because the losing party never proved it had actually filed its appeal.

What this practically means

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Executive summary

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This was a Notice of Motion dated 8th September 2021 brought by the Applicant under Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking release of money deposited in a joint interest-earning account of the parties' advocates at HFC Bank, Kisumu Branch. The deposit of Kshs. 1,200,000 had been made pursuant to a consent order of 16th December 2019 granting the Respondent stay pending appeal on condition of the deposit. The Applicant, acting for the Claimant, argued the Claimant was being denied the fruits of judgment since no appeal had been filed and no order stayed release of the decretal sum. The Respondent's counsel asserted a record of appeal had been filed and served by letter of 15th February 2021. The Applicant's further affidavit denied service until 12th October 2021, when the record bore no court stamp evidencing filing. Justice Christine N. Baari framed a single issue: whether the Respondent had filed an appeal to justify continued holding of the security. The court found the annexed payment receipts post-dated the application and were unaccompanied by any record of appeal, so it could not ascertain that an appeal had been filed at all. Applying the principles in Wilson v Church (No 2) and Kenya Shell Ltd v Kibiru, the court held the Respondent indolent, allowed the application, ordered release of the funds to Khasoa & Company Advocates, and awarded costs of the application to the Applicant.

Key legal issues

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01

Whether the Respondent had filed an appeal justifying continued holding of the deposited security

Holding

The Respondent had not demonstrated that an appeal had been filed; the security was to be released to the Claimant's advocates.

Reasoning

The Respondent claimed to have filed and served a record of appeal by letter of 15th February 2021. The Applicant denied receipt until 12th October 2021, when the record bore no court stamp. The receipts annexed were dated after the application was lodged, and were not accompanied by the record of appeal, so the court could not ascertain that an appeal was filed. The Respondent was indolent and had not fixed the appeal for directions or hearing.

p. 2

Legal principles established

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  • A litigant who has obtained judgment should not be deprived of the fruits of that judgment without just cause.
  • Whether to grant or refuse stay is a discretionary power exercised to prevent a successful appeal from being rendered nugatory.

Court orders

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  1. 1.That all the money deposited in HFC Bank Kisumu Branch Account Number xxxxxx-0, Account Name OTIENO YOGO OJURO & COMPANY and KHASOA & COMPANY ADVOCATES be released to the Firm of KHASOA & COMPANY ADVOCATES.
  2. 2.The costs of this application shall be borne by the Respondent.

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSections 1A, 1B & 3A
  • Court of Appeal Rulesnull

Cases cited (2)

  • Wilson v Church (No 2)
    12 Ch D (1879) 454
  • Kenya Shell Limited v. Benjamin Karuga Kibiru & Ruth Wairimu Karuga
    (1986) JELR 99917 (CA)
Jurisdiction invoked
Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B & 3A of the Civil Procedure Act

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, "David Wepukhulu v Kundan Singh Construction Ltd [2022] KEELRC 789 (KLR)", Case Analysis (2022). Notice of Motion dated 8th September, 2021 (ELRC at Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/789/eng@2022-02-17

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