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ELRCDismissedApplications dated November 21, 2022 and December 5, 2022 (case number not stated in the judgment)· [2023] KEELRC 799 (KLR)

Uzuri Industries Limited v Shilunji & another (Employment and Labour Relations Appeal E203 of 2022) [2023] KEELRC 799 (KLR)

Employment and Labour Relations Court
27 March 2023
MMM. Mbarũ
2,390 words in judgment
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The bottom line

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A Kenyan employer lost its bid to stop execution of a Ksh 636,000 judgment because it waited over a year and could not prove the other side knew of court orders.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Mombasa (M. Mbarũ J) determined two applications by the appellant arising from judgment in CMEL Cause No. 2328 of 2019 delivered by Hon. DO Mbeja on July 7, 2021, in which the 1st respondent was awarded Ksh 636,276.88 plus costs. The first application sought a temporary injunction, stay of execution pending hearing of the application and a intended appeal, and leave to appeal out of time. The second sought a finding of contempt against the respondents and committal for six months, on the basis that the 2nd respondent (auctioneer) proclaimed and carried away goods worth over Ksh 1,183,596.56 despite interim orders issued by the court. The 1st respondent replied that the appellant took no steps after judgment apart from filing a Notice of Appeal, and the decree and execution followed only after inaction; the 2nd respondent opposed on grounds of delay and lack of proof of service. The court framed four issues: contempt, extension of time, stay of execution, and costs. It found no substantial loss demonstrated and inordinate, unexplained delay of over a year, defeating both stay under Order 42 rule 6(2) and extension of time under Section 79G of the Civil Procedure Act. Contempt failed for want of proof of service of the orders before execution was completed, with the affixed orders bearing no time, date or distinctive marks. Both applications were dismissed with costs to the respondents.

Key legal issues

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01

Stay of execution under Order 42 rule 6(2)

Holding

Refused - substantial loss not demonstrated and application made with inordinate, unexplained delay

Reasoning

The court restated that an applicant must show substantial loss, no ability of the decree-holder to repay, and offer security, citing Edward Kamau, National Industrial Credit Bank and Ngatunyi Enterprises. The appellant took no steps for over a year after judgment until proclamation on November 19, 2022, and offered no explanation for the delay.

p. 4
02

Extension of time to appeal under Section 79G

Holding

Refused - unexplained delay of over a year

Reasoning

Section 79G requires filing within 30 days unless the appellant shows good and sufficient cause. The appellant filed a Notice of Appeal in July 2021 but took no further steps to secure the right of appeal until execution commenced in November 2022. The delay was neither explained nor excused, so the discretion to extend time was not available.

p. 5
03

Contempt of the orders of November 28, 2022

Holding

Not established - service not proved before execution completed

Reasoning

The appellant's advocate did not contest that the orders were served only after execution had been completed. The afixing of orders at the premises ('HM1','HM2') bore no time, date, place or distinctive marks proving the respondents' knowledge. Without proof of service and knowledge, wilful and deliberate disobedience could not be inferred.

p. 5

Legal principles established

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  • An applicant for stay of execution must demonstrate substantial loss and offer security for due performance of the decree, and the application must be made without unreasonable delay.
  • Appeals from subordinate courts must be filed within 30 days under Section 79G of the Civil Procedure Act, and extension requires good and sufficient cause.
  • Contempt of court orders requires proof of service of the orders and knowledge such that wilful and deliberate disobedience may be inferred.

Court orders

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  1. 1.Application dated November 21, 2022 dismissed
  2. 2.Application dated December 5, 2022 dismissed
  3. 3.The appellant shall meet costs due to the respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 75, 78, 79G
  • Civil Procedure RulesOrder 42 rules 1(3), 1(6), 6(2); Rule 26
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 8

Cases cited (3)

  • Edward Kamau & Another v Hannah Mukui Gichuki & Another
    [2015] eKLR
  • National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another
    [2006] eKLR
  • National Water Conservation & Pipeline Corporation v Ngatunyi Enterprises Limited
    [2016] eKLR
On appeal from
Magistrates' Court (ELRC subordinate cause)
CMEL Cause No. 2328 of 2019
Jurisdiction invoked
Sections 1A, 1B, 3A, 75, 78, 79G of the Civil Procedure Act; Order 42 rule 1(3) and (6) and Rule 26 of the Civil Procedure Rules; Rule 8 of the Employment and Labour Relations Court (Procedure) Rules, 2016

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Uzuri Industries Limited v Shilunji & another (Employment and Labour Relations Appeal E203 of 2022) [2023] KEELRC 799 (KLR)", Case Analysis (2023). Applications dated November 21, 2022 and December 5, 2022 (case number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/799/eng@2023-03-27

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