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ELRCDismissedNot stated in the judgment (application dated 13th January, 2021)· [2021] KEELRC 24 (KLR)

Zablon Kariuki Kahura v Ragos Trading Company Limited [2021] KEELRC 24 (KLR)

Employment and Labour Relations Court
20 December 2021
1,234 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The respondent, Ragos Trading Company Limited, moved the court by application dated 13th January, 2021 seeking stay of execution of the judgment and decree of 4th March, 2019 (Kshs.308,000 plus costs and interest), review and setting aside of the order closing its case on 17th January, 2019, the judgment, warrants of attachment issued to Mbusera Auctioneers on 16th December, 2020, and the taxation and certificate of costs of 3rd December, 2020, plus leave to file supplementary witness statement and documents and call further evidence. The claimant, Upendo Ignacious Allan, who had sued for unfair termination of employment, opposed through the affidavit of his advocate, Upendo Ignacious Allan, asserting the judgment was regular, the respondent having been heard on 2nd October, 2018 and granted an adjournment to bring a second witness on 17th January, 2019, on which date it failed to attend. The court framed three issues: stay of execution, review, and leave to file supplementary documents. Applying Order 42 rule 6(2) of the Civil Procedure Rules, the court held that substantial loss must be supported by empirical or documentary evidence, not mere assertions, and that the application filed over a year after judgment was not made without unreasonable delay. The closing of the hearing after the respondent's non-attendance was regular and procedural, so there was no good cause to set aside the judgment; further, no effort was made to meet Rule 33 of the ELRC (Procedure) Rules, 2016 for review. The application was dismissed in its entirety with costs to the claimant.

Key legal issues

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01

Stay of execution

Holding

Stay refused: the threshold under Order 42 rule 6(2) was not met.

Reasoning

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.

p. 2
02

Review and setting aside of judgment

Holding

Review refused: the judgment was valid and regular and no Rule 33 threshold was met.

Reasoning

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.

p. 2
03

Leave to file supplementary documents and evidence

Holding

Refused, being contingent on the failed review application.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application dated 13th January, 2021 is dismissed in its entirety
  2. 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

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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, "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.