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ELRCDismissedNotice of Motion dated 15th March 2023 (ELRC, Nairobi)· [2023] KEELRC 2069 (KLR)

Kisongochi v Fortcom Holdings Ltd (Employment and Labour Relations Cause 2337 of 2017) [2023] KEELRC 2069 (KLR)

Employment and Labour Relations Court
9 August 2023
AMANNA NGIBUINI MWAURE
2,119 words in judgment
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The bottom line

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A Kenyan court threw out a delay of debt enforcement because the debtor ignored his case for years and blamed his lawyer.

What this practically means

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Executive summary

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The respondent/judgment debtor, Simon Ngugi Muigai, moved the court by notice of motion dated 15th March 2023 seeking stay of execution of a judgment delivered on 16th June 2022 and a decree of Kshs 359,655/40, setting aside of the taxation ruling and certificate of taxation, leave for new advocates to come on record post-judgment, an injunction against attachment, and lifting of warrants of attachment. He blamed his former advocates, M/s Paul Anderson & Co, for failing to update him. The claimant opposed, asserting that the respondent was served with notices of the advocates ceasing to act, the bill of costs, taxation notices and the ruling, but ignored the proceedings and was indolent. The court framed one issue: whether the applicant had demonstrated a credible case for stay of execution. Applying the conditions in Vishram Raiji Halai v Thornton & Turpin and related authorities, the court found the respondent indolent since 2017, absent at the undefended hearing and at the hearing on the advocates' cessation, and served with numerous notices which were never denied. The respondent filed the application only after the proclamation of 10th March 2023, produced no record of an intended or filed appeal, demonstrated no arguable grounds, no absence of undue delay, no substantial loss beyond the fact of execution (a lawful process), and offered no security. The application was dismissed in total with costs to the claimant.

Key legal issues

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Whether the applicant satisfied the conditions for grant of stay of execution pending appeal

Holding

The application was dismissed because the applicant failed to establish arguable appeal, absence of undue delay, substantial loss or offer of security, having been indolent throughout the proceedings.

Reasoning

The court found the respondent indolent from 2017, absent at the undefended hearing, and served with notices of the advocate ceasing to act, the bill of costs, taxation notice and ruling, none of which was denied. The respondent filed the application only after proclamation on 10th March 2023, produced no record of appeal, demonstrated no substantial loss, and offered no security for due performance of the decree.

p. 5

Legal principles established

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  • A litigant owns his case and must follow up its progress; he cannot blame his advocate for an adverse decision
  • Stay of execution pending appeal requires sufficient cause, substantial loss, no undue delay and an offer of security
  • Substantial loss is not established merely by asserting that execution has commenced, since execution is a lawful process

Court orders

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  1. 1.The application by the respondent dated 15th March 2023 is dismissed in total
  2. 2.The respondent is ordered to pay the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 41 rule 6 (as it then was); Order 42 rule 6(1)
  • Constitution of KenyaArticles 159(2)(d) and 48
  • Civil Procedure ActSection 1B

Cases cited (6)

  • Alice Mumbi Nyanga v Danson Chege Nyanga & Another
    Civil Case No 394 of 2001
  • British American Insurance Co. Ltd v Julius Mamali Kanaali
    (2018) eKLR
  • Global Tours & Travels Ltd
    WC NO 43 of 200 UR
  • Vishram Raiji Halai v Thornton & Turpin
    Civil Application No 15 of 1991 (1990) eKLR 365
  • Ema Investments Ltd v Benard Ochau & others
    Cause 214 of 2015
  • Gian Franco Manenthi & Another v Africa Merchant Assurance Company Ltd
    2009 eKLR
Jurisdiction invoked
Inherent judicial discretion to grant stay of execution pending appeal; Order 42 rule 6 of the Civil Procedure Rules

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, "Kisongochi v Fortcom Holdings Ltd (Employment and Labour Relations Cause 2337 of 2017) [2023] KEELRC 2069 (KLR)", Case Analysis (2023). Notice of Motion dated 15th March 2023 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2069/eng@2023-08-09

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