Mukundi & 3 others v South Cape Investment Limited & 2 others (Employment and Labour Relations Cause 1266 of 2017) [2024] KEELRC 900 (KLR)
The bottom line
#A Kenyan employment court dismissed attempts to reopen a six-year-old judgment, ruling that 'new' CCTV evidence was always accessible and the delay was simply an abuse of process.
What this practically means
#Executive summary
#Key legal issues
#Whether the CCTV footage constituted new and important matter discoverable only after due diligence
No. The applicants always knew the footage was stored on servers in Bulgaria and made no attempt to retrieve it during the six years the suit was pending.
The ICT manager admitted the footage was automatically deleted after 15 days and stored in Bulgaria, so its location was within the applicants' knowledge throughout. No attempt was made to retrieve it between filing on 6/7/2017 and judgment on 27/7/2023. The application was only filed on 7/12/2023, five months after judgment and only after execution commenced, demonstrating an attempt to delay execution rather than genuine discovery.
Whether a party may withdraw a party and party bill of costs before the judge
No; withdrawal of such a bill is exclusively a matter for the taxing master, though the court deemed the bill withdrawn in the circumstances.
The court noted that a party who files pleadings may withdraw them and a notice of withdrawal is effective without court adoption. However, a party and party bill of costs falls within the taxing master's exclusive domain, so any application for withdrawal ought to be made there, not to the judge. Nonetheless the court marked the bill as withdrawn.
Whether stay of execution should issue where no appeal has been filed
No. Having filed no appeal, the applicants are bound by the judgment and must allow the claimants to enjoy its fruits.
The judgment was based on sound evidence tendered at trial. The applicants filed no appeal against the judgment and were thus bound to honour it. The belated review application, lodged only after the claimants filed their bill of costs on 23/10/2023 and began execution, was a deliberate scheme to baby-sit and delay execution and an abuse of court process.
Legal principles established
#- A notice of withdrawal of pleadings becomes effective upon filing and does not require adoption by the court
- Withdrawal of a party and party bill of costs is a matter exclusively before the taxing master, not the judge
- Discovery of new and important matter for review must be matter discovered since the order, which due diligence could not have produced at the time
Court orders
#- 1.The party and party bill of costs dated 23rd October 2023 is deemed withdrawn and marked as such
- 2.The claimant's application dated 6th December 2023 seeking review of the judgment on costs is dismissed with no order as to costs
- 3.The respondent's application dated 7th December 2023 seeking stay of execution and hearing denovo is dismissed with costs
- Jurisdiction invoked
- Inherent review jurisdiction of the Employment and Labour Relations Court (review of its own judgment; application under review provisions for discovery of new and important matter)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mukundi & 3 others v South Cape Investment Limited & 2 others (Employment and Labour Relations Cause 1266 of 2017) [2024] KEELRC 900 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/900/eng@2024-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.