Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers (KUDHEIHA) & 4 others v Tea Hotels Ltd & 5 others (Civil Appeal E023 & E028 of 2022 (Consolidated)) [2026] KECA 874 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a hotel land sale was void because auctioneers skipped mandatory court execution steps and sold the wrong property.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application dated 26th April 2021 was barred by the doctrine of res judicata
- 2.Whether the ELRC lacked jurisdiction to entertain the application dated 26th April 2021, whose subject matter was said to be title to and use and occupation of land
- 3.Whether there was a decree capable of execution
- 4.Whether the attachment, auction and sale of L.R. No. Kericho Municipality Block 4/295 complied with Order 22 of the Civil Procedure Rules and the Auctioneers Rules
- 5.Whether the parties or the auctioneer could lawfully substitute the property stated in the application for execution with a different property without court approval
- 6.Whether the purchasers were bona fide purchasers for value with indefeasible title
Key legal issues
#Res judicata
The application dated 26th April 2021 was not res judicata; it raised distinct matters and different applicants, and a withdrawn application cannot ground res judicata.
The court compared the prayers in the earlier application dated 14th June 2018 (staying sale of Block 4/313, setting aside warrants, personal liability of managers) with those in the 26th April 2021 application and found them totally distinct, with different applicants. Reliance on a withdrawn application was rejected outright. The five conditions in section 7 of the Civil Procedure Act were not co-existent.
Jurisdiction of the ELRC over the execution dispute
The ELRC had jurisdiction; the dispute was execution of its own decree, not a land title dispute, and the substance rather than the label of the claim governs jurisdiction.
The starting point is the substance of the claim and reliefs sought, not how a litigant labels the case. The land was sold in execution of an ELRC decree; section 13 of the ELRC Act applies the Civil Procedure Rules, and section 34 of the Civil Procedure Act reserves execution issues to the executing court. The appellants' characterisation as a use and occupation of land dispute was a flawed attempt to alter the character of the decree and diminish the ELRC's enforcement powers.
Validity of the execution and sale
The execution was fundamentally defective: no decree was extracted, the application for execution failed Order 22 Rule 9 requirements, no prohibitory order under Rule 48 was registered, and the advertisement deviated from Form No. 15.
Order 22 is a complete code for enforcing decrees with mandatory pre-execution steps. Nothing on record showed a decree was extracted or served; the date-of-decree space in the execution application was blank. No prohibitory order was registered against the title, terms of sale were not settled under Rule 57, and the advert deviated from the prescribed form. The sale was therefore fraudulently and irregularly done.
Substitution of the property in execution
The auctioneer sold L.R. No. Kericho Municipality Block 4/295 when the application for execution concerned Block 4/313; substitution without express court approval was unlawful, and attached property in the court's custody could not be privately alienated.
Once property is attached it is under the custody of the law (pignus judiciale) and section 47 of the Civil Procedure Act renders private alienation void against claims enforceable under the attachment. Parties cannot simply substitute the property named in the application for execution without adhering to mandatory procedural requirements and obtaining express court approval. The sale of a different parcel was therefore unlawful.
Bona fide purchaser and burden of proving fraud
Submitted by the purchasers but not sustained: the court affirmed the setting aside of the sale notwithstanding claims of bona fide purchase, the defects in the execution dislodging the purchasers' position.
Although the purchasers claimed indefeasible title as bona fide purchasers for value under sections 26 and 80 of the Land Registration Act and Katende vs Haridar, the court affirmed the trial judge's finding that the sale was conducted without due process and in breach of Order 22, and found no reason to fault the impugned ruling setting the sale aside.
Legal principles established
#- The ELRC has jurisdiction to order execution of its own decrees against immovable property under Order 22 of the Civil Procedure Rules, and all issues of execution, discharge or satisfaction must be raised before the executing court, not in a separate suit.
- Once execution by sale of immovable property is initiated under Order 22, parties and the auctioneer cannot lawfully substitute a different property without express approval of the Court.
- Strict compliance with the mandatory pre-execution steps in Order 22 (extraction and service of the decree, application for execution, attachment, valuation, proclamation and settling of terms of sale) is obligatory; sales held in non-conformity are illegal and without jurisdiction.
- A valid, extracted decree is a fundamental prerequisite to execution; without it there is no command for a bailiff or auctioneer to act upon.
Court orders
#- 1.Both consolidated appeals (E023 of 2022 and E028 of 2022) dismissed
- 2.The ruling delivered by Wasilwa, J on 18th January 2022 in Kericho ELRC Cause No. 10 of 2016 affirmed
- 3.Costs of both appeals awarded to the 1st and 2nd respondents in E023 of 2022 and the 2nd and 3rd respondents in E028 of 2022
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court, Kericho
- ELRC Cause No. 10 of 2016 (ruling of 18th January 2022)
- Jurisdiction invoked
- Section 31(1)(a) and Rule 34(4) of the Court of Appeal Rules, 2022 (first appeal); appeal from the ELRC under Article 162(2) of the Constitution and the Employment and Labour Relations Court Act
- Consolidated with
- Civil Appeal No. E028 of 2022
Relief refused
#Setting aside of the ruling dated 18th January 2022 as sought in both memoranda of appeal
The appeals were found devoid of merit; the execution that led to the sale was fundamentally defective for want of a decree and non-compliance with Order 22
Costs of the appeals to the appellants
The appellants having lost, costs followed the event
Costs
Costs of both appeals awarded to the 1st and 2nd respondents in E023 of 2022 and the 2nd and 3rd respondents in E028 of 2022
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion, I dismiss these consolidated appeals and award costs of both appeals to the 1st and 2nd respondents in E023 of 2022 and the 2nd and 3rd respondents in E028 of 2022.
Accordingly, I afirm the ruling delivered by Wasilwa, J on 18th January 2022 in Kericho Environment and Labour Relations Court Cause No. 10 of 2016, KUDHEIHA vs. Management of Tea Hotel, Ravji Devji Chabadia & Others.
the Court's duty to follow specific sale requirements is an "obligation," and sales held in non-conformity are illegal and without jurisdiction.
This provision extinguishes any notion or misconception that the ELRC did not have jurisdiction to entertain issues arising from its own decree.
I fail to understand how an application that was withdrawn can be said to be res judicata. It cannot be. I say no more.
parties cannot simply substitute the property with another one without adhering to the mandatory procedural requirements for attachment and sale of immovable property.
In absence of a decree, one wonders on what basis the execution proceeded. On this ground alone, it is clear that the much- hyped execution stood on quick sand.
Issues in the judgment
#The judgment inconsistently dates the application under challenge as '26th April 2021' in most places but as '26th April 2026' twice, an apparent typographical error.
The dates of the earlier application and ruling are misstated as '14th June 2028' and '9th October 2021' when the pleadings elsewhere record them as 14th June 2018 and 9th October 2018.
The judge opined that a withdrawn application cannot found res judicata, yet the impugned ruling had itself found the application not res judicata partly because the earlier application related to stay rather than cancellation of register entries; the reasoning on res judicata is thus layered and partly divergent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers (KUDHEIHA) & 4 others v Tea Hotels Ltd & 5 others (Civil Appeal E023 & E028 of 2022 (Consolidated)) [2026] KECA 874 (KLR)", Case Analysis (2026). Civil Appeal No. E023 of 2022 (consolidated with Civil Appeal No. E028 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/874/eng@2026-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.