Juma Hardware Limited v Tungani & 2 others (Appeal E189 of 2024) [2025] KEELRC 1831 (KLR)
The bottom line
#The Employment Court dismissed the workers' fresh application because it had already decided their appeal, telling them to enforce the existing judgment instead.
What this practically means
#Executive summary
#Key legal issues
#Whether the court could revisit the validity of the decided appeal
It could not; the issues had been addressed with finality in the appellate judgment of 5th February 2025 and the court was functus officio.
The court compared the grounds in the application with the issues it had already determined in its judgment of 5th February 2025, including locus standing after the merger, filing out of time, contempt and the certificate of delay. All had been resolved, so the applicants' remedy lay in a higher court, not a fresh application.
Whether the certificate of delay could be impugned via preliminary objection
No; it is a court record and a preliminary objection on a point of law is not the proper vehicle.
Relying on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, the court reiterated that a preliminary objection raises a pure point of law on assumed facts. Since the certificate of delay is a court document granted upon application, its credibility cannot be questioned through a preliminary objection.
Whether the deposited decretal sum should be released and further orders granted
The court had already ordered tabulation and drawing of the decree for payment from the joint account within 30 days; enforcement, not a fresh application, was the remedy for non-compliance.
The funds in the joint account are security for the decree amount and costs, not advocates' property. The claim that the applicants' former advocates refused to sign release forms over unpaid fees did not justify the application; enforcement mechanisms should be used against non-compliance with the judgment.
Legal principles established
#- A preliminary objection must be a pure point of law; it cannot be raised where facts must be ascertained
- A certificate of delay is a court record whose credibility cannot be challenged by way of preliminary objection
- Once a court has determined issues with finality it becomes functus officio, and parties must move the higher court if dissatisfied
- Money deposited in a joint advocate account is security for the decretal sum and costs, not the property of the advocates
Court orders
#- 1.The Notice of Motion dated 10th March 2025 is dismissed
- 2.No order as to costs - the application dismissed with no order as to costs
- On appeal from
- Magistrates' Court ( Employment and Labour Relations Court, MCELRC No. E438 of 2021, Hon. S. A. Opande)
- MCELRC No. E438 of 2021
- Jurisdiction invoked
- Employment and Labour Relations Court appellate jurisdiction over the subordinate court; application in pending appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Juma Hardware Limited v Tungani & 2 others (Appeal E189 of 2024) [2025] KEELRC 1831 (KLR)", Case Analysis (2025). MCELRC (Application) arising from Appeal in ELRCMISC No. E081 of 2023 / MCELRC No. E438 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1831/eng@2025-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.