Kiogora v Imetha Water & Sanitation Co Ltd & another (Miscellaneous Application E009 of 2022) [2023] KEELRC 2864 (KLR)
The bottom line
#A Kenyan employment court struck out a company's repeat request to delay paying a judgment, ruling you cannot re-argue an issue the court already decided.
What this practically means
#Executive summary
#Key legal issues
#Res judicata of the stay application
The notice of motion dated 11th August 2023 is res judicata, frivolous, vexatious and an abuse of the court process because the issue of stay pending the declaratory suit, and the condition of depositing the decretal sum, were already heard and determined by the same court.
Counsel for the applicant admitted that the court had previously determined the stay application by directing the whole decretal sum be deposited in court pending the declaratory suit. Section 7 of the Civil Procedure Act bars trial of an issue already directly and substantially in issue between the same parties, litigating under the same title, before a competent court and finally decided. The applicant sought a second bite at the cherry, engaging the court in circles of similar applications without complying with the earlier orders.
Ability to pay the decretal sum
The court found on the Auditor General's reports that the applicant had substantial income and could settle the decretal sum but was deliberately refusing to pay, hoping the insurance company would pay.
The Auditor General's report for the year ending June 30, 2022 showed income of Kes 54,306,969 and Kes 58,447,039 in 2021, and gave a qualified opinion citing financial mismanagement. This contradicted the applicant's claim of financial distress. The court inferred the applicant was able to pay but was deliberately withholding payment pending the declaratory suit against the insurer.
Legal principles established
#- An issue of stay of execution previously litigated and conclusively determined between the same parties cannot be re-litigated; res judicata bars a second application, including one for payment by instalments where the court had already directed deposit of the decretal sum.
- Where the ELRC's own procedure rules are silent on a doctrine, the court resorts to the Civil Procedure Rules and Civil Procedure Act.
Court orders
#- 1.The claimant's preliminary objection is allowed
- 2.The Notice of motion dated 11th August 2023 is struck out with costs
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 rule 1 and Order 22 rule 25 of the Civil Procedure Rules (res judicata under section 7 of the Civil Procedure Act applied to ELRC proceedings)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiogora v Imetha Water & Sanitation Co Ltd & another (Miscellaneous Application E009 of 2022) [2023] KEELRC 2864 (KLR)", Case Analysis (2023). Misc Application No E009 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2864/eng@2023-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.