Kamanga v Venus Inn & another (Employment and Labour Relations Cause 371 of 2017) [2024] KEELRC 404 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether a party can be struck out of a suit after judgment
No; the court is functus officio after judgment and cannot reopen the suit to strike out a party
Order 2 Rule 15 permits striking out of pleadings at any stage of the proceedings, but proceedings conclude with judgment. Once judgment is delivered the court becomes functus officio and cannot reopen the suit. The 2nd Respondent's prayer to be struck out therefore came too late and was dismissed.
Whether the ex-parte judgment against the 2nd Respondent should be set aside
No; service was properly effected and the 2nd Respondent was aware of proceedings through its common directors with the 1st Respondent
Affidavits of service showed proper service of pleadings and notices. The 1st and 2nd Respondents share common directors, so the 2nd Respondent knew of the proceedings from the outset. The 2nd Respondent also failed to attach a draft defence to demonstrate a good defence. The discretionary test in Shah v Mbogo was applied.
Whether the 1st Respondent should pay the decretal sum in instalments and obtain stay of execution
No; instalments cannot satisfy the mandatory security requirement of Order 42 rule 6(2) and the application was made to obstruct execution
Rule 6(2) is in mandatory terms requiring security for due performance of the decree. A proposal to pay over four years cannot be such security. The 1st Respondent had made no payments over a year since judgment, had not prosecuted its appeal, and had withdrawn an earlier stay application once interim orders were obtained, evidencing bad faith under Shah v Mbogo.
Whether the decretal sum should be shared equally between the Respondents
No; apportionment between joint and several judgment debtors is not a ground for review and would be a separate matter after satisfaction of the decree
The Claimant argued that apportioning the decretal sum among judgment debtors was a new cause of action to be litigated independently among the Respondents after the decree is satisfied. The court dismissed the 1st Respondent's application outright, rejecting the review and instalment proposals for want of bona fides and compliance with Order 42 rule 6.
Legal principles established
#- A court becomes functus officio upon delivering judgment and cannot reopen a suit to strike out a party after judgment
- Security for the due performance of a decree under Order 42 rule 6(2) must be deposited and cannot take the form of deferred instalment payments
- A judgment debtor seeking instalment payments must show bona fides by arranging fair payment proposals promptly
- The discretion to set aside ex-parte judgments is not designed to assist a party who deliberately seeks to obstruct or delay the course of justice
Court orders
#- 1.The prayer that the 2nd Respondent be struck out of the suit is dismissed as the court is functus officio after judgment
- 2.The 2nd Respondent's application dated 12th June 2023 is dismissed with costs to the Claimant/Decree Holder
- 3.The 1st Respondent's application dated 29th May 2023 is dismissed with costs to the Claimant/Decree Holder
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court over the employment claim and post-judgment applications under the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Bacchus Grocers Limited v Karisa (Appeal E112 of 2024) [2025] KEELRC 2569 (KLR)[2025] KEELRC 2569 (KLR)25 Sept 2025applied
Cite this brief
#Cite this brief
Caselaw, "Kamanga v Venus Inn & another (Employment and Labour Relations Cause 371 of 2017) [2024] KEELRC 404 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/404/eng@2024-02-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.