Mathenge t/a Imperial Water Services v Juma (Employment and Labour Relations Appeal E210 of 2023) [2025] KEELRC 21 (KLR)
The bottom line
#Kenya's Employment Court reinstated a stay of execution, ruling that a lawyer's mistake should not cost a client their case.
What this practically means
#Executive summary
#Key legal issues
#Whether the notice of change of advocates was proper without leave under Order 9 Rule 9 CPR
Properly filed; Order 9 Rule 9 does not apply to a change of advocates at the appeal stage since an appeal is fresh proceedings before a superior court and the former advocate's fees are secured at the trial court
The court adopted the reasoning of Makhandia J in Martin Mutisya Kiio and of the High Court in Kenya Pipeline v Lucy Njoki Njuru that an appeal is a 'different ball game' - fresh proceedings not bound by the trial court's legal representation. The mischief of Order 9 Rule 9 is protection of advocates' fees, which is covered because the former advocate may tax his fees in the trial court.
Whether the orders of 28th June 2024 should be varied, reinstated or time extended for compliance
Application allowed; stay orders reinstated with leave to deposit the decretal sum out of time within 21 days
The court found the failure to comply was caused by the previous advocate's failure to inform the applicant of the conditions for stay. The applicant had demonstrated good faith by proposing to deposit the decretal sum. Any prejudice to the respondent could be compensated by costs. No evidence was produced proving the motor vehicle had been sold or transferred despite the injunction.
Legal principles established
#- A change of advocates during an appeal is not restricted by Order 9 Rule 9 CPR because an appeal is fresh proceedings before a superior court
- The mistake of a counsel ought not to be visited on a litigant
Court orders
#- 1.The court reinstates the Orders made on the 28th day of June 2024 and grants leave to the Appellant/Applicant to deposit out of time the judgment sum of Kshs. 895,383/- in a joint interest-earning account in the names of Counsels for the parties within 21 days from the date of the Order
- 2.The Applicant to pay the Respondent throwaway costs of Ksh. 15,000 within 21 days of the Order
- 3.The applicant to settle the auctioneer's costs and the Motor Vehicle Registration Subaru Forester to be released to the Applicant upon settlement
- 4.In case of default of any of the above orders, execution may proceed
- 5.Mention on February 17, 2025 to confirm compliance and for further directions
- Jurisdiction invoked
- Section 16 of the Employment and Labour Relations Court Act, Cap. 8E; Rule 74(1)(d) and Rule 86 of the ELRC (Procedure) Rules, 2024; Order 22 Rule 25 and Order 42 Rule 6 of the Civil Procedure Rules; Sections 1A, 1B, 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mathenge t/a Imperial Water Services v Juma (Employment and Labour Relations Appeal E210 of 2023) [2025] KEELRC 21 (KLR)", Case Analysis (2025). Not stated in the extract (the underlying appeal is pending before the ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/21/eng@2025-01-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.