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ELRCDismissedNot stated in judgment· [2025] KEELRC 697 (KLR)

Kenya Engineering Workers Union v M/S Sohan Singh Josh & Sons Ltd (Cause 262 of 2020) [2025] KEELRC 697 (KLR)

Employment and Labour Relations Court of Kenya
6 March 2025
CBC. N. Baari
1,575 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court dismissed an employer's attempt to undo a 2022 order, ruling it was a delaying tactic after years of inaction, with costs awarded against it.

What this practically means

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Executive summary

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The Respondent moved the Employment and Labour Relations Court by a motion dated 27th July 2022 seeking a stay of execution, and review and setting aside, of the Ruling and Order issued ex parte on 5th July 2022, together with deeming of its grounds of opposition as duly filed and costs in the cause. It argued it was never served with notice of the hearing date, that its advocates' e-filing portal had been unmapped, and that it only learned of the ruling on the afternoon of 5th July 2022. The Claimant opposed through a Replying Affidavit sworn by Wycliffe A. Nyamwata, arguing the application was overtaken by events since the Ministry of Labour's CPMU report directed by the 5th July 2022 orders had been filed on 26th January 2024, that an Affidavit of Service showed proper service, and that the Respondent had never filed a response to the main claim after more than four years. Applying the Stephen Wanjohi criteria for stay, the Court found no sufficient cause, no substantial loss, and inordinate delay and disinterest by the Respondent, noting the orders had already been complied with. On review, applying Shah v Mbogo, the Court held no new evidence, mistake or need for clarification was shown, and characterised the motion as a delaying tactic. The Court dismissed the motion with costs to the Claimant on 6th March 2025, delivered by video-link and in court at Nairobi.

Key legal issues

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01

Whether the Respondent demonstrated sufficient cause for stay of execution

Holding

No sufficient cause was demonstrated; the Respondent was dilatory and the orders had already been complied with

Reasoning

The Respondent admitted the underlying application was unopposed, filed no replying affidavit or grounds of opposition despite leave, was repeatedly absent in court, and never filed a response to the main claim. The CPMU report directed by the orders had already been filed, rendering the stay moot and showing no substantial loss.

p. 3
02

Whether the ex parte Ruling of 5th July 2022 should be set aside or reviewed

Holding

No; the Respondent did not justify review and the motion was a delaying tactic

Reasoning

Review requires new and important matter, error apparent on the face of the record, or need for clarification - none was contended. The Court, applying Shah v Mbogo, held the discretion to set aside ex parte decisions is not designed to assist a party who has obstructed or delayed the course of justice, and found the motion devoid of merit.

p. 4

Legal principles established

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  • Grant of stay of execution requires sufficient cause, substantial loss, no unreasonable delay and security for due performance of the decree
  • The discretion to set aside ex parte proceedings is meant to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructed or delayed the course of justice
  • Review lies on discovery of new and important matter, error apparent on the face of the record, need for clarification, or other sufficient reason

Court orders

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  1. 1.The Respondent's motion dated 27th July 2022 is dismissed
  2. 2.Costs of the motion awarded to the Claimant
Jurisdiction invoked
Article 50 of the Constitution of Kenya; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Cap 21; Order 51 Rule 1 and Order 12 Rule 7 of the Civil Procedure Rules 2010 (as invoked in the motion)

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, "Kenya Engineering Workers Union v M/S Sohan Singh Josh & Sons Ltd (Cause 262 of 2020) [2025] KEELRC 697 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/697/eng@2025-03-06

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