Agnes Muthoni & 34 others v Kenya Medical Research Institute (KEMRI); Union of National Research and Allied Institutes Staff of Kenya (UNRISK) (Interested Party) [2021] KEELRC 21 (KLR)

Order 42 Rule 6 requires demonstration of substantial loss, security for due performance, and absence of delay. Only the absence of delay was met. Substantial loss is primary and without it the other tests cannot stand, as held in National Industrial Credit Bank Ltd v Aquinas Francis Wasike and James Wagalwa v Agnes Naliaka Cheseto. The grounds raised (jurisdiction, functus officio, impracticability) were appeal grounds, not proof of loss.

The respondent is a body corporate and state corporation whose officers act in perpetuity. The person holding the office of director may change but the office remains. Section 20(8) requires every director and officer of a body corporate to comply with orders directed to it, and section 20(9) imposes vicarious liability for offences unless consent/connivance and due diligence are proved. The argument that the orders did not bind the office of Director General was rejected.

The respondent's jurisdictional objections could not hold because the judgment allowing reinstatement was delivered on 13th May 2010 and is not a new matter. Orders seeking compliance with a judgment are part of execution. The court held it was not functus officio and that the respondent cannot rely on the passage of time to avoid compliance.

Knowledge of the orders was not disputed as the respondent's advocate was in court when they were issued; breach was not disputed as the respondent had not complied to date. The claim that the orders were unclear failed because the respondent never moved the court for clarification, and the orders were against the respondent as a body corporate. The current director had knowledge of the orders, so personal liability attaches.