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ELRCDismissedNairobi Civil Appeal (Application) No. 244 of 2020 (referenced); Application dated 26th October 2021· [2022] KEELRC 912 (KLR)

Rose Sang Tarus v Barclays Bank of Kenya Limited & another [2022] KEELRC 912 (KLR)

Employment and Labour Relations Court
3 February 2022
LNLinnet Ndolo
2,269 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 dismissed Barclays Bank's second attempt to stop execution of a Kshs. 2.4 million judgment, ruling the issue had already been decided.

What this practically means

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Executive summary

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The Respondent/Applicant, Barclays Bank of Kenya, moved the Employment and Labour Relations Court by application dated 26th October 2021, seeking an injunction to restrain execution of the judgment of Makau J of 26th June 2020 (Kshs. 2,400,000) and nullification of a proclamation by Mbusera Auctioneers, arguing that its letter of 19th October 2021 under Rule 11 of the Advocates Remuneration Order acted as an automatic stay, that the execution was premature, and that proclaimed items were exempt tools of trade under Section 44 of the Civil Procedure Act. The Claimant opposed through a preliminary objection on res judicata, citing a ruling of 27th May 2021 in which a similar stay application was dismissed, and a replying affidavit asserting there is no automatic stay upon filing a letter seeking reasons. Ndolo J held that although the application was couched as an injunction, its substance was a stay of execution pending appeal, relying on Order 42 Rule 6 and Butt v Rent Restriction Tribunal. Since an identical application had been determined on merit by Makau J on 27th May 2021, the matter was res judicata under Section 7 of the Civil Procedure Act; further, the Court of Appeal was fully seized of the matter, rendering the trial court functus officio. The application was dismissed with costs to the Claimant and the interim orders of 27th October 2021 were set aside.

Key legal issues

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01

Whether the application, framed as an injunction, is in substance a stay of execution and thus res judicata

Holding

Yes; despite the main prayer being an injunction, the substance is a stay of execution of Makau J's judgment pending appeal, already determined on 27th May 2021

Reasoning

The court examined the substance rather than the form of the application, noting the Applicant relied on Order 42 Rule 6 of the Civil Procedure Rules and Butt v Rent Restriction Tribunal on stay conditions. Since an identical application had been disallowed by Makau J and the matter was before the Court of Appeal, Section 7 of the Civil Procedure Act barred re-litigation and rendered the trial court functus officio.

p. 3

Legal principles established

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  • A second application for stay of execution pending appeal, in substance identical to one already determined on merit, is res judicata and a trial court cannot re-open it once the appeal is before the Court of Appeal

Court orders

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  1. 1.The Applicant's application dated 26th October 2021 is dismissed with costs to the Claimant
  2. 2.The interim orders granted on 27th October 2021 are set aside

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 44(1)(ii) & (iv)
  • Civil Procedure RulesOrder 42 Rule 6
  • Advocates Remuneration OrderRule 11

Cases cited (4)

  • Barclays Bank of Kenya v Rose Tarus
    Nairobi Civil Appeal (Application) No. 244 of 2020
  • National Industrial Credit Bank Ltd v S.K Ndegwa Auctioneer
    Civil Appeal No. 195 of 2004
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
On appeal from
null
null
Jurisdiction invoked
Inherent jurisdiction of the Employment and Labour Relations Court; court found it lacked jurisdiction on res judicata grounds under Section 7 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, "Rose Sang Tarus v Barclays Bank of Kenya Limited & another [2022] KEELRC 912 (KLR)", Case Analysis (2022). Nairobi Civil Appeal (Application) No. 244 of 2020 (referenced); Application dated 26th October 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/912/eng@2022-02-03

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