Zablon Kariuki Kahura v Ragos Trading Company Limited [2021] KEELRC 24 (KLR)
The bottom line
#A Kenyan court refused to stop execution of a Ksh.308,000 judgment because the losing company waited over a year and offered no real evidence of harm.
What this practically means
#Executive summary
#Key legal issues
#Stay of execution
Stay refused: the threshold under Order 42 rule 6(2) was not met.
The court reiterated that substantial loss must be evidenced, not merely asserted, and that the application must be made without unreasonable delay. Judgment was delivered on 4th March, 2019 but the application was filed on 13th January, 2021, over a year later, and the respondent gave no explanation for failing to attend the hearing on 17th January, 2019 or for the intervening period. The mere offer to deposit security did not justify stay.
Review and setting aside of judgment
Review refused: the judgment was valid and regular and no Rule 33 threshold was met.
The court found that the hearing had been closed after the respondent, though present and granted an adjournment on 2nd October, 2018 to bring a second witness, failed to attend on 17th January, 2019. The closing was therefore regular. With the judgment valid and regular, review fell away, and in any event the applicant made no effort to meet the conditions of Rule 33 of the ELRC (Procedure) Rules, 2016.
Leave to file supplementary documents and evidence
Refused, being contingent on the failed review application.
Since the judgment was found valid and review was unavailable, the ancillary prayers for leave to file a supplementary witness statement, documents, call evidence and file submissions could not stand. No effort had been made to satisfy the Rule 33 conditions even if review were open.
Legal principles established
#- An applicant for stay of execution must adduce empirical or documentary evidence of substantial loss; mere assertions are insufficient.
- A stay application must be made without unreasonable delay, and an applicant seeking stay must act with diligence and haste.
- Where a party was indulged with an adjournment and failed to attend court, the subsequent closing of the hearing is regular and procedural and constitutes no good cause to set aside the judgment.
Court orders
#- 1.The application dated 13th January, 2021 is dismissed in its entirety
- 2.Costs to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court (Procedure) Rules, 2016 (application for stay and review in the suit itself); no constitutional provision stated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zablon Kariuki Kahura v Ragos Trading Company Limited [2021] KEELRC 24 (KLR)", Case Analysis (2021). Not stated in the judgment (application dated 13th January, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/24/eng@2021-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.