Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedELRCC MISC Application (Notice of Motion dated September 28, 2022)· [2023] KEELRC 671 (KLR)

Kitale v Statpack Industries Ltd (Miscellaneous Case E155 of 2022) [2023] KEELRC 671 (KLR)

Employment and Labour Relations Court of Kenya
21 March 2023
JGJacob Gakeri
3,624 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

Sicpa Kenya lost its bid to reconstruct a court file and stay execution because it waited too long and another judge had already ordered the file reconstructed.

What this practically means

#

Executive summary

#
This was a ruling by the Employment and Labour Relations Court at Nairobi on a notice of motion dated September 28, 2022 by the applicant/respondent, expressed under section 16 of the Employment and Labour Relations Court Act and Rules 33 and 38 of the ELRC (Procedure) Rules, 2016. The applicant sought leave to reconstruct the file in ELRCC No. 879 of 2017, which was said to be lost or missing, together with further orders thereafter. Its supporting affidavit deponed that the file was unavailable, preventing it from acting in a matter in which execution through warrants and proclamation was imminent. The respondent opposed the application, asserting it was misconceived, an abuse of process and overtaken by events: judgment had been entered on May 21, 2020, set aside on conditions the applicant failed to fulfil, the judgment reinstated in February 2021, costs taxed with the applicant's participation, a decree issued on December 10, 2021, and the file already reconstructed pursuant to an order of Rika J. granted on August 24, 2022 in ELRCC MISC No. E127 of 2022. The respondent also invoked the doctrine of functus officio and Order 22 rule 22(1) of the Civil Procedure Rules on stay of execution. The court held that reconstruction relief was overtaken by events and that it was functus officio on reconstruction, guided by Telkom Kenya Limited v John Ochanda and Raila Odinga v IEBC. On stay, the interim stay granted on September 30, 2022 had fulfilled the applicant's request entirely; further, the application was not timeous, substantial loss was not particularised, and no sustainable case was made. The Notice of Motion was dismissed with costs on March 21, 2023.

Key legal issues

#
01

Whether the court could grant leave to reconstruct the file in ELRCC No. 879 of 2017

Holding

The relief was refused because the file had already been reconstructed under an order of Rika J. issued on 24th August 2022, and the court was functus officio on that question.

Reasoning

The Respondent had earlier applied in ELRCC MISC No. E127 of 2022 for reconstruction of the same file, and the order was granted on 24th August 2022 and acted upon; warrants of attachment had since issued. The instant application sought reconstruction of the same file and raised no new issue. Guided by the doctrine of functus officio as explained in Telkom Kenya Limited v John Ochanda and Raila Odinga v IEBC, the court held that a final decision once given and a decree issued cannot be re-opened or varied.

p. 7
02

Whether a further stay of execution of the decree should be granted

Holding

No further stay was granted. The interim stay granted on 30th September 2022 had fulfilled the applicant's request entirely, and no sustainable case for a stay beyond the application was made.

Reasoning

The stay sought was exclusively pending the application, which had been granted on 30th September 2022 and had run its course. In analysing whether further stay could have issued, the court applied Order 42 rule 6(2) of the Civil Procedure Rules requiring substantial loss, absence of unreasonable delay and security. The applicant failed to particularise the immense suffering it alleged, did not attach the cited annexure JK2, and delayed unreasonably since March 2021 without applying for reconstruction or stay.

p. 6
03

Whether the application was timeous

Holding

The application was found to be time-barred in effect, with unexplained delay since March 2021 when the file went missing.

Reasoning

The chronology showed the applicant's counsel knew of the missing file from as early as March 2021 yet took no meaningful steps, sending only two letters within the 90-day window and continuing to write letters instead of applying for review, appeal, reconstruction or stay even after the decree issued on 10th December 2021. Counsel could have applied for reconstruction and stay from December 2021 when the Respondent obtained the decree.

p. 6

Legal principles established

#
  • A court that has rendered a final decision and issued a decree thereon is functus officio and cannot re-engage with the merits of the case
  • A party seeking stay of execution must satisfy the conditions of Order 42 rule 6(2) of the Civil Procedure Rules, 2010: substantial loss, no unreasonable delay, and security
  • An applicant for discretionary relief must particularise the loss and specify the orders sought with precision

Court orders

#
  1. 1.The Notice of Motion dated September 28, 2022 was dismissed with costs

Authorities

#

Legislation

  • Employment and Labour Relations Court Actsection 16
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 33 and 38
  • Employment and Labour Relations Court Rules, 2016rule 32(2)
  • Civil Procedure Rules, 2010Order 42 rule 6(1) and 6(2); Order 22 rule 22(1); Order 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 48 and 159(2)(d)

Cases cited (9)

  • ICEA Lion General Insurance Company Limited v Julius Nyaga Chomba
    (2020)
  • Jersey Evening Post Ltd v Al Thani
    (2002) JRL 542 at 550
  • Eunice Grace Njambi Kamu & another v Kenya National Highways Authority & 30 others
    (2022) eKLR
  • John Muthee Ngunjiri & 4 others v Attorney General & 3 others; Kenya Power & Lighting Co. Ltd & another (Interested parties)
    (2021) eKLR
  • Andrew Okoko v John Waweru Ngatia & another
    (2018) eKLR
  • Charles Irungu v Elizabeth Kalunda Wakano
    (2021) eKLR
  • Telkom Kenya Limited v John Ochanda
    (2014) eKLR
  • Raila Odinga & 2 others v IEBC and 3 others
    (2013) eKLR
  • Re St. Nazarre Co (1979) 12 Ch 1288
    (1979) 12 Ch 1288
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act, Rules 33 and 38 of the Employment and Labour Relations Court (Procedure) Rules, 2016 and all other enabling provisions of law

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kitale v Statpack Industries Ltd (Miscellaneous Case E155 of 2022) [2023] KEELRC 671 (KLR)", Case Analysis (2023). ELRCC MISC Application (Notice of Motion dated September 28, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/671/eng@2023-03-21

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