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ELRCDismissed· [2024] KEELRC 900 (KLR)

Mukundi & 3 others v South Cape Investment Limited & 2 others (Employment and Labour Relations Cause 1266 of 2017) [2024] KEELRC 900 (KLR)

Employment and Labour Relations Court
4 April 2024
1,126 words in judgment
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The bottom line

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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

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Executive summary

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Before the Employment and Labour Relations Court at Nairobi were two competing applications arising from a judgment delivered on 27th July 2023 in a suit filed on 6th July 2017, in which judgment was entered in favour of the claimants against the respondents (casino-related employment dispute). By notice of motion dated 6th December 2023 the claimant sought review of the judgment limited to costs and withdrawal of its party and party bill of costs dated 23rd October 2023 so that execution could continue. The respondents, while supporting a review of the entire judgment, did not oppose the bill's withdrawal. The court held that withdrawal of pleadings is effective upon filing without court adoption, but that withdrawal of a party and party bill of costs lies exclusively before the taxing master. It nonetheless deemed the bill withdrawn, refused review on costs for want of grounds, and dismissed that application with no order as to costs. By notice of motion dated 7th December 2023 the respondents sought stay of execution and a hearing denovo, alleging discovery of new CCTV footage said to depict the claimants stealing cash and chips, which had been lost and retrieved only in November 2023 from servers in Bulgaria. The court, applying Alpha Fine Food Limited v Horera Kenya Limited, found the applicants always knew where the footage was stored, made no attempt to retrieve it during six years of litigation, and filed their application five months after judgment and only after execution commenced. The application was a gross abuse of process and was dismissed with costs. Judgment delivered at Nairobi on 4th April 2024 by Mathews Nderi Nduma, Judge.

Key legal issues

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01

Whether the CCTV footage constituted new and important matter discoverable only after due diligence

Holding

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.

Reasoning

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.

p. 3
02

Whether a party may withdraw a party and party bill of costs before the judge

Holding

No; withdrawal of such a bill is exclusively a matter for the taxing master, though the court deemed the bill withdrawn in the circumstances.

Reasoning

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.

p. 2
03

Whether stay of execution should issue where no appeal has been filed

Holding

No. Having filed no appeal, the applicants are bound by the judgment and must allow the claimants to enjoy its fruits.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The party and party bill of costs dated 23rd October 2023 is deemed withdrawn and marked as such
  2. 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. 3.The respondent's application dated 7th December 2023 seeking stay of execution and hearing denovo is dismissed with costs

Authorities

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Cases cited (1)

  • Alpha Fine Food Limited versus Horera Kenya Limited and 4 others
    [2021] eKLR
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

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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, "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.