Wairimu & another (Suing as the Legal Representatives and Administrators of the Estate of Josphat Kiuri Mwangi (Deceased)) v Zhongmei Enginineering (K) Group Limited (Miscellaneous Application 102 of 2018) [2020] KEELRC 484 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the deposited sum of KShs. 2,534,400.00 ought to be released to the Applicants' Advocates given the status of the Respondent's intended appeal
- 2.Whether the application is premature, res judicata, or otherwise an abuse of process
- 3.Whether this Court has jurisdiction to make substantive orders on matters pending before the Court of Appeal
Key legal issues
#Whether the deposited decretal sum should be released for failure to file a record of appeal in time
The court declined to order release because the Respondent demonstrated that the record of appeal was filed on 18/6/2020
The Applicants argued the Respondent never filed a record of appeal within the 60-day period from notification, and that COVID-19 did not suspend time. The Respondent explained the delay: proceedings were not ready until January 2020, certification of the ruling was obtained on 5/3/2020, and the COVID-19 closure of courts and counsel's offices disrupted filing, with the appeal filed on 18/6/2020. The court accepted the filing as demonstrated and held the application overtaken by events.
Jurisdiction to make substantive orders where an appeal is pending in the Court of Appeal
The court effectively accepted that the parties should await the Court of Appeal's directions rather than grant the orders sought
The Respondent contended the court lacked jurisdiction to make substantive orders touching matters pending before the appellate court and that the application was res judicata under section 7 of the Civil Procedure Act. The court did not rule definitively on jurisdiction but, having found the appeal filed, declined the orders and directed the parties to await the Court of Appeal's directions, with costs reserved to the appeal.
Legal principles established
#- Where an appeal has been filed and is pending before the appellate court, an application for release of deposited decretal funds is overtaken by events and the parties must await the appellate court's directions
Court orders
#- 1.Application declined; orders sought not granted
- 2.Parties directed to await directions from the Court of Appeal
- 3.Costs to await in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent powers of the High Court / Employment and Labour Relations Court (invoked by Applicants); contested on jurisdiction by Respondent
Relief refused
#Release of KShs. 2,534,400.00 plus accrued interest to Kivuva Omuga & Company Advocates
The Respondent had since filed its appeal, rendering the application overtaken by events
Costs
Costs to await in the appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Respondents having demonstrated that they have since filed their appeal on 18/6/2020, the application is overtaken by events.
I therefore decline to grant orders sought. I direct the Parties to await for the direction from the Court of Appeal.
Costs to await in the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wairimu & another (Suing as the Legal Representatives and Administrators of the Estate of Josphat Kiuri Mwangi (Deceased)) v Zhongmei Enginineering (K) Group Limited (Miscellaneous Application 102 of 2018) [2020] KEELRC 484 (KLR)", Case Analysis (2020). Not stated in judgment (Notice of Motion dated 6/5/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/484/eng@2020-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.