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ELRCDismissedNot stated in the judgment

Mursal v Shalle & 6 others (Petition E080 of 2020) [2024] KEELRC 2384 (KLR)

Environment and Land Court / Employment and Labour Relations Court (unclear from judgment text; application brought under Articles 162(1)(a), 165(3)(b) and (c) of the Constitution)
27 September 2024
1,332 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to halt a judgment revoking a chief's appointment because he delayed too long, filed no appeal, and couldn't prove he was never served.

What this practically means

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Executive summary

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The 1st Respondent, Wardere Kalihe Shalle, brought an application dated 4th August, 2023 under Articles 162(1)(a), 165(3)(b) and (c) of the Constitution, section 7 of the Fair Administrative Action Act and various provisions of the Civil Procedure Act and Rules, seeking stay of execution of the judgment and decree, setting aside of the entire proceedings, stay and suspension of the advertisement of 28th July, 2023 for the position of Chief Boji Heri Location, and leave to defend the petition. He averred that he was appointed Chief in November 2020, never served with the petition in which his appointment was revoked by judgment of 19th December, 2022, and only learned of it in April 2023 when his salary stopped. The Petitioner opposed the application through submissions. The court applied Order 42 Rule 6(2) and the authorities of Nicholas Stephen Okaka v Alfred Waga Wesonga and James Wangalwa v Agnes Naliaka Cheseto on the conditions for stay and the meaning of substantial loss. It found no appeal had been filed against the judgment, so there was nothing pending in respect of which a stay could issue. The applicant's claim of non-service could not be entertained because he never sought to cross-examine the process server. The court held he first moved court inordinately late, withdrew his first application, and only returned when the position was advertised, coming without clean hands. Staying the judgment would seriously affect the appointing bodies and third parties more than one and half years after judgment. The application was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has satisfied the conditions for grant of stay of execution under Order 42 Rule 6(2)
  2. 2.Whether the judgment and decree of 19th December, 2022 should be set aside for want of service on the 1st Respondent
  3. 3.Whether the advertisement of 28th July, 2023 for the position of Chief Boji Heri Location should be stayed or suspended

Key legal issues

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01

Whether the conditions for stay of execution under Order 42 Rule 6(2) were met

Holding

The conditions were not met; there was no appeal, the application was made inordinately late, and the orders were overtaken by events

Reasoning

The court found no appeal had been filed against the judgment revoking the applicant's appointment, so there was nothing pending to stay. The applicant first moved court on 25th May 2023, months after the judgment of 19th December 2022, withdrew that application, and only returned after the position was advertised. The court held he had relaxed and came late and without clean hands.

p. 4
02

Whether the judgment should be set aside for alleged non-service

Holding

The allegation of non-service could not be entertained absent cross-examination of the process server

Reasoning

The applicant claimed he was never served with summons, pleadings or hearing notices. The court held that this assertion could not be entertained because he never sought to cross-examine the process server who claimed to have served him, and his delay of nearly six months before his first application, which was later withdrawn, undermined his position.

p. 3

Legal principles established

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  • An applicant for stay of execution must satisfy the conditions of substantial loss, absence of unreasonable delay, and provision of security
  • Mere commencement or likelihood of execution does not amount to substantial loss

Court orders

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  1. 1.The application dated 4th August, 2023 is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Articles 162(1)(a), 165(3)(b) and (c) of the Constitution; section 7 of the Fair Administrative Action Act; sections 1A, 1B and 3A of the Civil Procedure Act; Orders 22 Rule 22(1), 10 Rule 11, 19 Rule 2 and 51 of the Civil Procedure Rules

Relief refused

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Stay of execution of the judgment and decree dated 19th December, 2022

Applicant did not meet the conditions for grant of stay, there being no appeal against the judgment

p. 4

Setting aside of the entire proceedings

Applicant came to court inordinately late and did not come with clean hands; the orders sought were overtaken by events

p. 3

Stay and suspension of the advertisement of 28th July, 2023 for the position of Chief Boji Heri Location

Staying the judgment would seriously affect the appointing bodies and third parties, more than one and half years after the judgment

p. 3

Leave to defend the suit

Applicant's assertion that he was not served was not entertained as he never sought to cross-examine the process server

p. 3

Costs

The application is dismissed with costs

Quotable passages

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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 application is therefore found without merit and is hereby dismissed with costs.
p. 4Final orders - dismissal of the application
the Applicant has not met the conditions for grant of stay of execution there being no appeal to challenge the Judgment of this court revoking his appointment
p. 4Failure to satisfy conditions for stay
the 1st Respondent did not come to it with clean hands and came when it was inordinately late
p. 3Clean hands and inordinate delay
No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss.
p. 3Definition of substantial loss

Issues in the judgment

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minor

The judgment refers to the application as dated 4th August, 2023 but paragraph 2 refers to stay of execution of judgment and decree dated 19th December, 2023, while elsewhere the judgment is stated to have been delivered on 19th December, 2022

minor

The coram designates the judicial officer as 'Presiding Judge-Appeals Division' and the court and case number are not clearly stated in the judgment

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, "Mursal v Shalle & 6 others (Petition E080 of 2020) [2024] KEELRC 2384 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2384/eng@2024-09-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.