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ELRCDismissedCause No 2400 of 2012· [2024] KEELRC 60 (KLR)

Musuni & 3 others v Dambusters East Africa Limited (Cause 2400 of 2012) [2024] KEELRC 60 (KLR)

Employment and Labour Relations Court
25 January 2024
2,977 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to rescue an employer who ignored orders and shopped between courts, and let workers finally collect their money.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court (Maureen Onyango, J) determined two competing applications arising from a judgment delivered on 21st June 2019 awarding four Claimants a total of Ksh. 1,041,968.25 against the Respondent, Dambdusters East Africa Limited. The Respondent had been granted conditional stay on deposit of the decretal sum in a joint interest-bearing account. Having failed to deposit costs and pay auctioneer's fees within the 14 days allowed by orders of 4th May 2022 (which were self-acting), the Respondent's stay automatically lapsed, and on 26th July 2022 the court confirmed that the stay had lapsed and directed release of the deposited sum to the Claimants with liberty to execute for costs and auctioneer's fees. The Respondent sought review of those orders, alleging they were issued exparte after its counsel had logged off a virtual session. The court examined the record and found both counsel were present and heard on 26th July 2022, that the May orders were self-acting, and that the Respondent had forum-shopped - having filed application E368 of 2022 in the Court of Appeal on the same subject matter and returning to this court only after failing there. That conduct, together with persistent non-compliance, inordinate delay and no follow-up on its 2019 Notice of Appeal, amounted to an abuse of process disentitling the Respondent to equitable relief. The Respondent's application dated 19th August 2022 was dismissed; the orders of 26th July 2022 were confirmed and the bank directed to release the deposited funds to Okemwa & Company Advocates for the Claimants.

Key legal issues

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01

Whether the orders of 26th July 2022 were issued exparte without hearing the Respondent

Holding

The orders were not exparte; the record shows the Respondent's counsel (Mr. Muriithi, holding brief for Mr. Marete) was present and responded to the Claimant's application before the orders were made.

Reasoning

The court reproduced the proceedings of 26th July 2022 verbatim, showing both counsels were present. Mr. Muriithi responded to Mr. Okemwa's application before the court made its orders. The Respondent's averment of absence was therefore factually incorrect. Further, the 4th May 2022 orders were self-acting: stay would automatically lapse upon non-compliance, so the court's later pronouncements merely recorded what had already taken effect.

p. 6
02

Whether the Respondent's conduct disentitled it to review

Holding

Yes. The Respondent filed application No. E368 of 2022 in the Court of Appeal on the same subject matter on 17th August 2022 and only came to this court after failing there - an abuse of process. It also failed to comply with the 4th May 2022 orders and filed no appeal despite a Notice of Appeal dated 3rd July 2019.

Reasoning

The court emphasized that equity aids the vigilant and that a party must come with clean hands and full disclosure. The Respondent did not deny filing the Court of Appeal application on the same subject; it pursued parallel proceedings and only returned to this court after failing there. It repeatedly went to sleep until execution was threatened. Such conduct rendered it ineligible for the equitable orders sought.

p. 7

Legal principles established

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  • A litigant seeking equitable relief must come with clean hands and make full disclosure of all relevant facts, including concurrent proceedings on the same subject matter before another court.
  • Filing an application in another court on the same subject matter and, upon failure there, returning to the original court for the same orders, constitutes an abuse of court process disentitling the party to equitable orders.
  • Self-acting conditional orders take effect automatically upon non-compliance, and subsequent judicial pronouncements merely re-emphasize what has already taken effect.

Court orders

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  1. 1.The Respondent's application dated 19th August 2022 seeking review and setting aside of the orders of 2nd August 2022 is dismissed for lack of merit
  2. 2.The orders made on 26th July 2022 are confirmed
  3. 3.The bank is directed to release the moneys deposited into the joint account held in the names of the Advocates of the parties to Okemwa & Company Advocates for the Claimants/decree holders

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
Jurisdiction invoked
Inherent and review jurisdiction of the trial court over its own orders (including stay and release of deposited decretal funds); appeal noted as pending before the Court of Appeal (application No. E368 of 2022). No specific provision quoted in the excerpt.

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, "Musuni & 3 others v Dambusters East Africa Limited (Cause 2400 of 2012) [2024] KEELRC 60 (KLR)", Case Analysis (2024). Cause No 2400 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/60/eng@2024-01-25

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