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ELRCPartially AllowedMombasa ELRC Appeal (from Mombasa CMELRC No. E178 of 2018)· [2024] KEELRC 2297 (KLR)

Slingshot Limited & another v Nyamai & another (Employment and Labour Relations Appeal E120 of 2024) [2024] KEELRC 2297 (KLR)

Employment and Labour Relations Court
26 September 2024
MMM. Mbarũ
1,918 words in judgment
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The bottom line

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Kenya's Employment Court confirmed that after judgment you cannot sack your advocate and self-represent without consent or court leave, and froze a garnishee order pending proof of payment.

What this practically means

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Executive summary

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This was an appeal to the Employment and Labour Relations Court at Mombasa from a ruling of the magistrate's court (Mombasa CMELRC No. E178 of 2018) delivered on 17 May 2024. The background was a garnishee application by the 1st respondent, Charles Munyao Nyamai, who had been allowed to act in person. The 2nd respondent, his former advocate, filed a Notice of Preliminary Objection relying on Order 9 rules 9 and 10 of the Civil Procedure Rules, which the magistrate upheld, striking out the 1st respondent's Notice of Motion dated 19 March 2024. The appellants, the judgment debtors, appealed on five grounds, principally that they had already paid the entire consent sum - Kshs. 150,000 to the 2nd respondent and the balance of Kshs. 153,000 directly to the 1st respondent - and that allowing further execution would condemn them to double payment. The 2nd respondent opposed, arguing improper joinder and lack of leave to appeal, citing Attorney General v Bala and JMK v MWM & Another. M. Mbarũ, J, held that the magistrate correctly applied Order 9 rules 9 and 10, since the 1st respondent could not act in person post-judgment without consent or a court order, and the impugned application was properly struck out. However, the court found the payment facts undisputed and held that both respondents should remain before the trial court so full settlement could be determined. The appeal was allowed in part: the Garnishee Order of 11 September 2023 was set aside, with a safeguard requiring any sum of Kshs. 153,000 released to the 1st respondent to be deposited in court within seven days, failing which the appellants are discharged from payment. Parties revert to the trial court for directions, with costs of the appeal to the 1st respondent.

Key legal issues

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01

Change of advocate or acting in person post-judgment under Order 9 rules 9 and 10

Holding

A party cannot act in person post-judgment without consent of the advocate or leave of the court; an application filed in breach is struck out

Reasoning

The learned magistrate correctly applied Order 9 rules 9 and 10: after judgment, a party intending to act in person must obtain consent or a court order. The 1st respondent did neither, so his application dated 19 March 2024 was properly struck out. However, the appeal court varied the consequences by setting aside the garnishee order pending resolution of the payment dispute at the trial court.

p. 4
02

Whether payment of the consent sum renders the garnishee proceedings otiose

Holding

The payments are not denied but the trial court needs both respondents to determine full settlement; the garnishee order is set aside with a deposit safeguard

Reasoning

The court found that payment of Kshs. 150,000 to the 2nd respondent and Kshs. 153,000 to the 1st respondent was not denied, but removing either party would deprive the trial court of material records. It therefore set aside the garnishee order and directed that any released sum be secured by a deposit in court within 7 days, failing which the appellants are discharged.

p. 4

Legal principles established

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  • Where there is a change of advocate after judgment, such change or intention to act in person must be effected by consent or through an order of the court

Court orders

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  1. 1.The Garnishee Order of 11 September 2023 is set aside
  2. 2.Where the sum of Kshs. 153,000 is released to the 1st respondent as the intended beneficiary, he shall secure the same with a deposit in court within the next seven (7) days
  3. 3.Where there is no deposit, the appellants shall be discharged from making this payment to any of the respondents
  4. 4.Parties revert to the trial court
  5. 5.Mention before the trial court for directions
  6. 6.Costs of the appeal to be met by the 1st respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 rules 9 and 10
  • Employment and Labour Relations Court (Procedure) RulesRule 2
  • Constitution of KenyaArticle 50

Cases cited (2)

  • Attorney General v Bala
    Civil Appeal 223 of 2017
  • JMK v MWM & Another
    [2015] eKLR
On appeal from
Magistrates Court (ELRC), Mombasa
Mombasa CMELRC No. E178 of 2018
Jurisdiction invoked
First appeal from the subordinate court under the Employment and Labour Relations Court (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, "Slingshot Limited & another v Nyamai & another (Employment and Labour Relations Appeal E120 of 2024) [2024] KEELRC 2297 (KLR)", Case Analysis (2024). Mombasa ELRC Appeal (from Mombasa CMELRC No. E178 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2297/eng@2024-09-26

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