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ELRCDismissedELRC No. 514 of 2021 (Application dated 13 March 2024)· [2024] KEELRC 1359 (KLR)

Professional Clean Care v Fondo (Miscellaneous Application E030 of 2024) [2024] KEELRC 1359 (KLR)

Employment and Labour Relations Court
6 June 2024
MMM. Mbarũ
1,482 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to reopen an application it had already decided by consent, confirming that once a court rules on agreed terms, its role is complete.

What this practically means

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Executive summary

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Professional Clean Care, the applicant, moved the ELRC at Mombasa by a Notice of Motion dated 13 March 2024 under section 12(3) of the ELRC Act, rule 17 of the ELRC (Procedure) Rules, 2016 and Orders 21 and 42 of the Civil Procedure Rules. It sought extension of time to file a Memorandum and Record of Appeal against the judgment of Hon. R.N. Akee in CMELRC No.514 of 2021 (Petronilar Konde v Professional Clean Care) delivered on 6 December 2023, a stay of execution, and the lifting of warrants of attachment and a proclamation notice issued for Ksh.540,830. The applicant argued it had no notice of the judgment and that no draft decree had been served as required under Order 21 rule 8(2). The respondent, while not opposing the application on conditions, later argued the court was functus officio. On 11 April 2024 the application was allowed by consent on conditions: deposit of the decretal sum within 21 days, filing of the Memorandum of Appeal within 14 days, and a mention on 30 April 2024 to confirm the Record of Appeal. When the matter returned, the court, per M. Mbarũ J, held that stay of execution had been addressed with finality and the court stood functus officio, rendering the applicant's remaining questions moot. The application was dismissed with costs to the respondent.

Key legal issues

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01

Functus officio

Holding

The application dated 13 March 2024 was already allowed on 11 April 2024 on conditions accepted by both parties, so the court had exhausted its jurisdiction and could not revisit the matters.

Reasoning

The respondent had not opposed the application on condition that the applicant deposit the decretal sum in court and file the Record of Appeal; the applicant accepted these conditions. The court accordingly allowed the motion on those terms, extended time to file the Memorandum of Appeal and extended interim orders. Having addressed stay of execution with finality, the court's function was spent, rendering the questions on satisfaction of stay conditions moot.

p. 3
02

Whether the applicant filed an appeal and security within the allocated time

Holding

The court declined to determine this because the matter was moot given its functus officio status.

Reasoning

The court observed that whether the applicant had filed an appeal within the allocated time, and whether the security deposit had been made, were moot questions since the purpose of the conditions was to secure the appeal and the jurisdiction over the stay issue had been fully addressed on 11 April 2024.

p. 4

Legal principles established

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  • Once a court has definitively determined an application on agreed terms, it is functus officio and cannot revisit the same application

Court orders

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  1. 1.Notice of Motion dated 13 March 2024 dismissed
  2. 2.Costs to the respondent

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12(3)(i) and (iii)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17; Rule 8
  • Civil Procedure RulesOrder 21 rules 8 and 9; Order 42 rule 6(2)

Cases cited (2)

  • Ecobank Kenya Limited v Afrikon Limited
    [2017] eKLR
  • Asige Keverenge and Anyanzwa Advocates v Kenya Revenue Authority & another
    [2021] eKLR
On appeal from
Chief Magistrate's Court at Mombasa
CMELRC No.514 of 2021 (Petronilar Konde v Professional Clean Care)
Jurisdiction invoked
Section 12(3)(i) and (iii) of the Employment and Labour Relations Court Act; rule 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016; Order 21 rules 8 and 9 and Order 42 rule 6(2) of the Civil Procedure Rules

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, "Professional Clean Care v Fondo (Miscellaneous Application E030 of 2024) [2024] KEELRC 1359 (KLR)", Case Analysis (2024). ELRC No. 514 of 2021 (Application dated 13 March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1359/eng@2024-06-06

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