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ELRCDismissedNot stated in the judgment (employment cause before the court at Mombasa)· [2024] KEELRC 439 (KLR)

Ndunda & 5 others v Habo Group of Companies Limited (Cause 768 of 2015) [2024] KEELRC 439 (KLR)

Employment and Labour Relations Court
29 February 2024
MMM. Mbarũ
1,388 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The respondent, Habo Group of Companies Limited, filed a Notice of Motion dated 15 December 2023 seeking stay of execution of orders issued on 25 July 2023 (warrants of arrest against its directors) and their setting aside, contending that the company had been wound up by Gazette Notice No. 666 of 29 January 2021 and that the orders were obtained through non-disclosure and lack of service. The claimants opposed through a replying affidavit of their advocate, Kitonga O Kiiva, showing that judgment was delivered on 15 December 2020 for Kshs 1,560,230 plus costs and interest; that despite service the directors had failed to attend for examination; that warrants of arrest issued on 25 July 2023; and that the respondent had repeatedly failed to attend court, including failing to prosecute an earlier stay application and failing to file submissions. The respondent did not attend the hearing of its own application. The court found the respondent's conduct abusive, applying the test in Nyarangi v Musyoki Mogaka & Co. Advocates on abuse of court process. It dismissed the application for want of prosecution, ordered the release of the Kshs 200,000 security deposit to the claimants, and directed that execution proceedings remain active. No costs order was stated. Delivered in open court at Mombasa on 29 February 2024 by M. Mbarũ, Judge.

Key legal issues

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01

Whether the respondent's application dated 15 December 2023 should be granted despite non-attendance

Holding

The application was dismissed because the respondent neither attended court nor filed written submissions to prosecute it

Reasoning

The court reviewed the respondent's history of non-attendance, failed settlement negotiations, and failure to file submissions. It held that seeking discretionary relief under a Certificate of Urgency and then failing to appear defeats the purpose of the application and constitutes sheer abuse of court process. Consequently, the stay and setting-aside orders sought were refused.

p. 3
02

Whether the respondent's conduct amounted to abuse of court process

Holding

Yes; the court applied the Nyarangi v Musyoki Mogaka & Co. Advocates enumeration of abuse scenarios, finding the respondent's stalling tactics abusive

Reasoning

The court adopted the cited authority's definition of abuse of court process and related the various aspects directly and indirectly to the respondent's conduct: repeated non-attendance, failure to honour settlement mentions, and using applications to stall execution of a judgment delivered in 2020.

p. 4
03

Whether the security deposit of Kshs 200,000 should be released to the claimant

Holding

Yes; the deposit posted upon a director's release from warrants of arrest was ordered released to the claimant

Reasoning

The deposit had been lodged as security for the due performance of the judgment. With the application dismissed and no settlement achieved, the court directed that the deposit be released to the claimant forthwith and that execution proceedings remain active.

p. 4

Legal principles established

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  • A party who obtains discretionary orders but fails to attend court to prosecute the application abuses the court process, and the application may be dismissed for want of prosecution
  • Abuse of court process arises where the process of court has not been resorted to fairly, properly, honestly, to the detriment of the other party

Court orders

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  1. 1.The respondent's Notice of Motion dated 15 December 2023 is dismissed for want of prosecution
  2. 2.The security deposit of Kshs 200,000 shall be released to the claimant forthwith
  3. 3.Execution proceedings remain active

Authorities

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Cases cited (1)

  • Nyarangi v Musyoki Mogaka & Co. Advocates
    Civil Appeal 80 of 2020 [2022] KEHC
Jurisdiction invoked
Original employment and labour relations jurisdiction of the court (provision not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ndunda & 5 others v Habo Group of Companies Limited (Cause 768 of 2015) [2024] KEELRC 439 (KLR)", Case Analysis (2024). Not stated in the judgment (employment cause before the court at Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/439/eng@2024-02-29

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