Peter Mbugua Kanoi & 5 others v Coffee Board of Kenya [2014] KEELRC 140 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)

15 October 2014

MNMathews N. Nduma

738 words in judgment

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The bottom line

A settlement agreement between lawyers does not stop execution of a court decree in Kenya until the court formally adopts it as an order.

What this practically means

Executive summary

The applicant corporation, described in the judgment as the Respondent Corporation, moved the court by an undated Chamber Summons supported by the affidavit of Frankie Welikhe, a legal officer, seeking a stay of execution of a consent recorded between the parties' advocates, the unconditional release of motor vehicles KBN 196E and KBU 893T held by auctioneers instructed by the claimants, a bar on auctioneers' fees, and a stay of advertisement and any subsequent auction of the attached vehicles. The applicant argued that a consent for stay of execution dated 12th May 2014 was in place, making the attachment of 12th July 2012 (referred to as execution for the balance of Ksh.6,797,889/-) unlawful, with the disputed sum held in a joint advocates' account at Bank of Africa. The claimants, through a replying affidavit of the 1st Claimant Peter Mbugua Kanoi, countered that a valid, unsatisfied decree existed; no stay order was in force at the time of proclamation and attachment; the first portion of the decretal sum (Kshs.11,084,206.48) had been paid; no appeal had been prosecuted since a Notice of Appeal in July 2013; and the application was res judicata, a similar application having been dismissed by Maureen Onyango J. on 4th April 2014. The court found that no consent order had been endorsed by the Court at the time of attachment, that no stay order existed, and that following Mutava J. in A Craft Management Service Limited v Agricultural Finance Corporation, an unendorsed consent does not suffice to pre-empt execution. It further found the application res judicata. The application was dismissed with costs to the Claimant/Respondent.

Key legal issues

Effect of an unendorsed consent on execution of a decree

Holding

The purported consent dated 9th May 2014 was not adopted as an order of the Court and therefore could not pre-empt execution of the decree

Reasoning

Relying on the decision of Mutava J. in A Craft Management Service Limited v Agricultural Finance Corporation, the court reasoned that a consent between parties only becomes an order of the Court upon endorsement. No consent order had been endorsed on the record at the time of attachment, and no stay order was in place, so the attachment and proclamation of the vehicles were lawful.

p. 3

Res judicata regarding a second stay application

Holding

A prior application for stay of execution dismissed by Maureen Onyango J. could not be revisited by another court of equal jurisdiction

Reasoning

The court found that the applicant had previously filed a similar application on 23rd July 2013, which was heard and dismissed by Maureen Onyango J. on 4th April 2014. Having been dismissed by a judge of equal and concurrent jurisdiction, the matter was res judicata and could not be revisited.

p. 3

Legal principles established

A consent order becomes an order of the Court only upon being endorsed by the Court; an unendorsed consent cannot pre-empt execution of a decree

Court orders

1.The application is dismissed with costs to the Claimant/Respondent

Authorities

Cases cited (1)

A Craft Management Service Limited Vs. Agricultural Finance Corporation and 5 others
HCC of Kenya at Nairobi Civil Suit 74 of 2007

Jurisdiction invoked: Not expressly stated; the court exercised its first-instance jurisdiction over execution of its decree and stated the previous application was 'dismissed prior by the trial Judge Maureen Onyango J.'

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Peter Mbugua Kanoi & 5 others v Coffee Board of Kenya [2014] KEELRC 140 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/140/eng@2014-10-15

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