Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 465 of 2016· [2023] KEELRC 1109 (KLR)

Osiche v Dambusters E.A (Dambusters Bar & Restauraunt Limited) (Cause 465 of 2016) [2023] KEELRC 1109 (KLR)

Employment and Labour Relations Court
27 April 2023
OKOcharo Kebira
1,501 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan employment court refused to stop execution of a judgment because the applicant delayed five months and never filed an appeal.

What this practically means

#

Executive summary

#
This is a ruling of the Employment and Labour Relations Court (Ocharo Kebira, J) on a Notice of Motion dated April 14, 2022 by the Respondent/Applicant. The application sought leave for M/s Kithinji Marete & Company Advocates to come on record, an injunction restraining execution against the applicant's business premises, goods and property, and stay of execution of the judgment and decree of March 22, 2022 (including a certificate of costs), following a 7-day proclamation notice served on April 11, 2022. The applicant attributed its inaction to the death of its former director in September 2016, whose advocates had ceased acting without service on the company, and cited COVID-19's impact on its hospitality business. The Claimant/Decree Holder opposed, showing that hearing and judgment notices had been served on the applicant's manager, that the applicant failed to attend the hearing on September 28, 2021, did not oppose taxation, and was only jolted into action by the proclamation. The court granted leave to the new advocates to come on record under Order 9 Rule 9, but dismissed the rest of the application. It held that stay under Order 42 Rule 6(2) requires a pending appeal or steps towards filing one, which the applicant never demonstrated, and that the delay of about five and a half months from the October 28, 2021 judgment was inordinate, amounting to laches. The application was accordingly dismissed; no costs order was made.

Key legal issues

#
01

Whether leave to come on record should be granted to new advocates after judgment

Holding

Leave was granted as the requirements of Order 9 Rule 9 were satisfied

Reasoning

Order 9 Rule 9 requires an order of the court for a change of advocate after judgment. The court was satisfied the legal requirements were met and allowed M/s Kithinji Marete & Company Advocates to come on record for the applicant.

p. 3
02

Whether stay of execution and injunction pending appeal could issue

Holding

Dismissed - no pending appeal shown, delay was inordinate, and conditions for stay were not established

Reasoning

The applicant did not show a pending appeal or steps towards filing one, a prerequisite to invoking Order 42 Rule 6(2). Judgment notice was served on October 28, 2021, yet the application was filed on April 14, 2022 - a delay of about five and a half months which the court found inordinate. The applicant was guilty of laches.

p. 4

Legal principles established

#
  • Before a court grants stay pending appeal under Order 42 Rule 6(2), the applicant must demonstrate a pending appeal or steps taken towards filing one
  • The conditions for stay pending appeal are absence of inordinate delay, demonstration of substantial loss, and provision of security
  • A change of advocate after judgment requires an order of the court under Order 9 Rule 9

Court orders

#
  1. 1.Allowed the firm of M/s Kithinji Marete & Company Advocates to come on record for the Applicant/Respondent
  2. 2.Dismissed the Notice of Motion application dated April 14, 2022 as without merit

Authorities

#

Legislation

  • Constitution of KenyaArticles 50, 159, 159(2)(d), 48
  • Civil Procedure ActSections 1, 1A, 1B, 3A
  • Employment and Labour Relations ActSection 12(3)(i)
  • Civil Procedure RulesOrder 22 Rule 25; Order 40 Rules 1 and 4; Order 51; Order 9 Rule 9; Order 42 Rule 6(2); Order 21 Rule 1
Jurisdiction invoked
Sections 1, 1A, 1B and 3A of the Civil Procedure Act, Section 12(3)(i) of the Employment and Labour Relations Act, and Order 22 Rule 25, Order 40 Rules 1 and 4 and Order 51 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Osiche v Dambusters E.A (Dambusters Bar & Restauraunt Limited) (Cause 465 of 2016) [2023] KEELRC 1109 (KLR)", Case Analysis (2023). Cause No 465 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1109/eng@2023-04-27

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