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ELRCDismissednot stated in the judgment provided· [2024] KEELRC 2619 (KLR)

Gold Crown Beverages (Kenya) Limited v Ngugi (Cause 635 of 2016) [2024] KEELRC 2619 (KLR)

Employment and Labour Relations Court of Kenya
24 October 2024
2,294 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court dismissed a losing party's attempt to undo a judgment, ruling you cannot swap advocates, delay execution, or reopen a case you ignored.

What this practically means

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Executive summary

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The respondent, Maina Ngugi, filed an application dated 17 May 2024 in which the firm of John Mwendwa & Company Advocates sought to come on record post-judgment, and sought stay of execution of the final judgment delivered on 28 September 2023, setting aside, review and annulment of the proceedings of 13 July 2013 and the 'ex parte' judgment, and reopening of both parties' cases. He blamed his former advocates, E.A. Ochieng & Company Advocates, for professional negligence, saying he only learnt of the judgment when auctioneers moved to attach his property. The claimant opposed, maintaining the judgment was not ex parte, that the respondent had participated throughout, and that the application was an abuse of process designed to deny the claimant the fruits of an 8-year-old claim. The court framed four issues and traced the procedural history: the suit was filed on 1 September 2016, appearance and counterclaim were filed, and the claimant's witness was cross-examined in the respondent's presence in 2022. Defence was closed on 13 July 2023 after the respondent's non-attendance. The court held there was no ex parte judgment capable of being stayed or reviewed, and that the court can only stay, review or annul that which exists. On the change of advocates, the court applied Order 9 Rule 9, holding that where a consent is not secured leave must first be obtained; no leave was sought, so filings by the new firm were invalid. Blame for the advocate's conduct could not shift the litigant's responsibility. The application was found to be an abuse of court process and dismissed with costs to the claimant.

Key legal issues

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01

Change of advocates post-judgment

Holding

The change was improperly effected; Order 9 Rule 9 requires a consent or leave, neither of which was obtained, rendering the new firm's filings invalid

Reasoning

The court traced the purpose of Order 9 Rule 9 as preventing disruptive changes of advocates without settling costs. Where consent cannot be secured, leave with reasons must be obtained first. Here no leave was sought and no explanation given beyond blaming prior advocates, so the application should have terminated at the threshold.

p. 5
02

Stay, review and annulment of 'ex parte' judgment

Holding

The judgment of 28 September 2023 was not ex parte as the respondent participated throughout; defence was closed on 13 July 2023 after his non-attendance

Reasoning

The procedural history showed the respondent entered appearance, filed a response and counterclaim, and cross-examined the claimant's witness. He was absent on 17 April and 13 July 2023 despite his advocate attending. Blaming advocates does not amount to sufficient cause, and an application to annul proceedings of 13.7.2013 targets a non-existent proceeding.

p. 4
03

Reopening of proceedings

Holding

Reopening was refused as the respondent was responsible for the delays and reopening would prejudice the claimant after judgment

Reasoning

The record showed repeated adjournments largely attributable to the respondent's unreadiness and non-attendance. The counterclaim had been addressed with finality. Revisiting the claimant's case after judgment would be prejudicial, and the respondent's reliance on Article 159 could not overcome his own failure to attend.

p. 5

Legal principles established

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  • Change of advocates post-judgment requires either a consent between outgoing and incoming advocates or leave of court upon application with notice; without leave, filings by the incoming firm are invalid
  • A litigant cannot blame his advocate's negligence to escape the consequences of his own non-attendance; the suit belongs to the litigant
  • A court can only stay, review or annul a judgment or proceeding that actually exists

Court orders

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  1. 1.The application dated 17 May 2024 was found to be an abuse of court process and was dismissed with costs to the claimant

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 9 Rule 9
  • Employment and Labour Relations Court ActSection 3
  • Employment and Labour Relations Court ActSection 22
  • Employment and Labour Relations Court (Procedure) RulesRule 33
  • Advocates ActSection 53
  • Constitution of KenyaArticle 159

Cases cited (5)

  • Njue Njagi v Ephantus Njiru & Another
    [2016] eKLR
  • Shah v Mbogo & another
    [1967] EA
  • Equatorial Commercial Bank Limited v Pickwel and Deal Limited & another
    [2019] eKLR
  • National Bank of Kenya Ltd v E. Muriu & Njoroge Nani Mungai t/a Muriu Mungai & Co. Advocates
    HCCC 539 of 2004
  • Kibai v Permanent Secretary Ministry of Public Health & 3 others
    (Environment & Land Case 145 of 2018) [2023] KEELC
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court under the Employment and Labour Relations Court Act; application under Order 12 Rule 7 and Order 9 Rule 9 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, "Gold Crown Beverages (Kenya) Limited v Ngugi (Cause 635 of 2016) [2024] KEELRC 2619 (KLR)", Case Analysis (2024). not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2619/eng@2024-10-24

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