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ELRCPartially AllowedNot stated in excerpt (ELC/ELRC Nakuru; judgment of 24 April 2015 in suit between the parties)· [2015] KEELRC 320 (KLR)

Felix Kipkeu Kiyeng v Moi Teaching And Referral Hospital [2015] KEELRC 320 (KLR)

Employment and Labour Relations Court
6 November 2015
RSRadido Stephen
604 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 nullified a decree that added orders the judge never made, warning that decrees must exactly match judgments before any property is attached.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nakuru, delivered by Radido Stephen Judge on 6 November 2015, dealt with a motion by the Respondent following a judgment of 24 April 2015 awarding the Claimant Kshs 83,077/- in unpaid overtime. The Respondent failed to pay promptly, and the Claimant instructed auctioneers who attached the Respondent's properties, prompting the Respondent to issue cheques of Kshs 58,153/90 to the Claimant and Kshs 20,000/- to Gilette Traders & Auctioneers. The Respondent then moved the Court seeking several orders, contending that the Claimant had extracted a decree without reference to it and that the decree did not reflect the Court's true orders. The Court agreed: paragraph 36 of the judgment had expressly found that the Claimant failed to prove unlawfulness of termination based on redundancy and had dismissed the claims for compensation, pay in lieu of notice and gratuity, yet the extracted decree declared the termination unfair. The Court held this was not a curable irregularity but a fatal defect going to the heart of its findings, entitling it to set the decree aside ex debito justitiae. Blame was placed on the Claimant and his advocates for rushing extraction without sharing a draft decree for approval, and on the registry for sealing decrees without verifying agreement with the judgment. The Court set aside the decree and all consequential actions, declined to rule on the other limbs of the motion, held that the awards are subject to statutory deductions under section 49(2) of the Employment Act, 2007, and awarded the Respondent costs of the motion.

Key legal issues

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01

Whether the extracted decree reflected the judgment of 24 April 2015

Holding

It did not; it included a declaration of unfair termination which the judgment had expressly refused

Reasoning

Paragraph 36 of the judgment had found the Claimant failed to prove unlawfulness of termination and dismissed compensation, notice pay and gratuity, yet the extracted decree declared the termination unfair. The discrepancy was not a curable irregularity but a fatal defect striking at the heart of the Court's findings, entitling the Court to nullify the decree ex debito justitiae.

p. 1
02

Consequences of the defective decree on execution proceedings

Holding

All actions founded on the defective decree, including the attachment, fall with it

Reasoning

Since the decree was fatally defective, the attachment of the Respondent's properties by auctioneers, done in execution of that decree, could not stand. The Court set aside the decree and all consequent actions. Blame fell on the Claimant and his advocates for rushing extraction without statutory compliance and on the registry for sealing a decree not in accord with the judgment.

p. 2
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Statutory deductions on the awards

Holding

The monetary awards are subject to statutory deductions under section 49(2) of the Employment Act

Reasoning

In declining to deal with the remaining limbs of the motion, the Court clarified that the sums awarded on 24 April 2015 are subject to statutory deductions as required by section 49(2) of the Employment Act, 2007, and accordingly the Respondent's cheque of Kshs 58,153/90 reflected such deductions.

p. 2

Legal principles established

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  • A decree that does not reflect the judgment is fatally defective and may be set aside ex debito justitiae
  • Awards under section 49(2) of the Employment Act, 2007 are subject to statutory deductions
  • The officer signing and sealing a decree must ensure it accords with the judgment
  • A draft decree should be shared with the other party for approval before extraction

Court orders

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  1. 1.The decree as extracted is set aside/nullified together with any consequent actions taken upon it (including the attachment by auctioneers)
  2. 2.The awards made by the Court are subject to statutory deductions pursuant to section 49(2) of the Employment Act, 2007
  3. 3.Respondent is awarded costs of the motion

Authorities

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Legislation

  • Employment Actsection 49(2)
Jurisdiction invoked
Inherent power of the Employment and Labour Relations Court to set aside an irregularly extracted decree ex debito justitiae

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, "Felix Kipkeu Kiyeng v Moi Teaching And Referral Hospital [2015] KEELRC 320 (KLR)", Case Analysis (2015). Not stated in excerpt (ELC/ELRC Nakuru; judgment of 24 April 2015 in suit between the parties). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/320/eng@2015-11-06

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