[2019] KEELRC 1929 (KLR)
The court found that the Respondent's application for stay of execution pending appeal was essentially a repetition of issues already raised and determined in the previous applications dated 20th and 24th September 2018. The court had already dismissed those applications in its ruling of 27th November 2018. The...
Source-derived case information.
- Citation
- [2019] KEELRC 1929 (KLR)
- Parties
- Applicant: Linus Ikabuteni; Respondent: Excellent Security Services Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 300 of 2016
- Procedural Posture
- Stay Application / Ruling on Application to Stay Execution Pending Appeal
- Outcome
- application struck out as res judicata and abuse of process
- Judges
- L Ndolo
- Legal Topics
- Stay of Execution, Res Judicata, Setting Aside Ex Parte Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Linus Ikabuteni
Applicant
Excellent Security Services Limited
Respondent
Procedural Posture
Stay Application / Ruling on Application to Stay Execution Pending Appeal
Legal Issues
- 1 Whether the application for stay of execution pending appeal is res judicata.
- 2 Whether the current application constitutes an abuse of court process.
Ratio Decidendi
The court found that the Respondent's application for stay of execution pending appeal was essentially a repetition of issues already raised and determined in the previous applications dated 20th and 24th September 2018. The court had already dismissed those applications in its ruling of 27th November 2018. The present application did not raise any new grounds or circumstances that would warrant a reconsideration of the matter. As such, the application was deemed res judicata and an abuse of the court process. The court therefore struck out the application with costs to the Claimant.
Court Disposition
application struck out as res judicata and abuse of process
Orders
- The application dated 6th February 2019 is struck out with costs to the Claimant.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA
CAUSE NO 300 OF 2016
LINUS IKABUTENI...........................................................CLAIMANT
VERSUS
EXCELLENT SECURITY SERVICES LIMITED....RESPONDENT
RULING
1. On 10th May 2018, I entered an ex parte judgment in favour of the Claimant and against the Respondent in the sum of Kshs. 75,645. The Respondent subsequently filed two applications dated 20th September 2018 and 24th September 2018, seeking orders of stay of execution and setting aside of the ex parte judgment.
2. In my ruling delivered on 27th November 2018, I dismissed both applications.
3. The Respondent subsequently filed the current application on 7th February 2019 seeking stay of execution pending appeal.
4. The application, which is supported by an affidavit sworn by the Respondent’s Counsel, Eric Munzyu is based on the following grounds:
a) The Respondent filed an application dated 20th September 2018 seeking stay of proceedings and setting aside of ex parte judgment entered in favour of the Claimant;
b) The application was heard and a ruling reserved for 15th November 2018 on which date the Court did not sit;
c) The Respondent was not informed of any further date and only recently became aware that the ruling had been delivered dismissing the application;
d) The Claimant will not suffer any prejudice should the current application be allowed.
5. The Claimant’s response is by way of Preliminary Objection raised by notice dated 11th February 2019 by which the Claimant simply states “THAT the said Application is Res Judicata.”
6. I have looked at the Respondent’s application together with the supporting affidavit and annextures and find that what the Respondent seeks in the current application is essentially what was sought in the twin applications dated 20th September 2018 and 24th September 2018. All the issues raised were exhaustively determined in the ruling delivered by the Court on 27th November 2018.
7. The application dated 6th February 2019 is therefore an abuse of the court process and the only thing to do is to strike it out with costs to the Claimant.
8. It is so ordered.
DATED SIGNED AND DELIVERED AT MOMBASA THIS 14TH DAY OF MARCH 2019
LINNET NDOLO
JUDGE
Appearance:
Mrs. Kariuki for the Claimant
Mr. Munzyu for the Respondent