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ELRCDismissedCause No 759 of 2012· [2015] KEELRC 792 (KLR)

Kenya Union of Entertainment and Music Industry Employers v Bomas of Kenya Limited [2015] KEELRC 792 (KLR)

Industrial Court of Kenya
30 June 2015
HWHellen Wasilwa
1,151 words in judgment
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The bottom line

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A Kenyan court allowed a union to seize a company's goods over unpaid agency fees because the company offered no plan to pay the Kshs 2.5 million debt.

What this practically means

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Executive summary

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The Respondents in an industrial cause moved the Industrial Court by application dated 23rd February 2015 under Articles 159, 162(2) and 164(3) of the Constitution, the Industrial Court Act, the Civil Procedure Act and Rules, seeking urgent certification, a stay of proclamation and attachment, temporary injunctions restraining the Claimant union from executing or dealing with goods proclaimed on 20th February 2015, lifting of the proclamation for Kshs.1,705,000, and a declaration that the proclamation was a nullity. They contended that the ruling of 14th December 2012 had been marked settled, that agency fees had been paid up to January 2015, and that the union's instruction of Keysian Auctioneers amounted to sharp practice over a non-existent debt, causing irreparable harm. The Claimant, through its General Secretary Mucuha Job Wainaina, replied that the Respondents were in arrears pursuant to Gazette Notice and the Minister's Order. The court directed the parties to attempt ADR facilitated by the Chief Industrial Relations Officer of the Ministry of Labour, whose report of 7th May 2015 quantified outstanding agency fee arrears at Kshs.2,539,580, including sums ordered by court, arrears from salary increments, and dues for 26 employees including 15 promoted to managerial positions. In submissions the Respondents conceded the debt but sought variation of the orders of 10th June 2013 without offering any payment proposals. Justice Hellen Wasilwa held that a party resisting execution must demonstrate compliance or give reasonable payment proposals. Finding none, the court dismissed the relief sought and directed that the Claimants proceed with execution, subject to any reasonable proposal acceptable to the court. Judgment was delivered on 30th June 2015 with no costs order stated.

Key legal issues

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01

Whether execution by proclamation and attachment should be stayed

Holding

Stay and injunction refused; execution to proceed as directed by the court

Reasoning

The court referred the parties to ADR under the Chief Industrial Relations Officer, whose report found the Respondents owed agency fees arrears totalling Kshs.2,539,580. The Respondents' submissions conceded the debt but sought only a variation of the orders of 10th June 2013, without proposing how to pay. Absent compliance or a reasonable proposal, the court saw no basis to halt execution.

p. 3
02

Whether agency fees were fully settled such that the proclamation was a nullity

Holding

No; arrears remain outstanding including agency fees ordered by court and fees in respect of promoted and resigned employees

Reasoning

The Respondents asserted that agency fees had been paid up to January 2015 and that the proclamation over Kshs.1,705,000 was a nullity. However, the Chief Industrial Relations Officer's report, which informed the court's decision, quantified arrears of Kshs.1,123,788 ordered by court, Kshs.397,292 from salary increments, and further sums for 26 employees, and directed immediate deductions for employees promoted to managerial positions.

p. 3

Legal principles established

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  • A party seeking relief from execution must demonstrate compliance with the court's orders or put forward reasonable proposals for payment of the amounts due

Court orders

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  1. 1.Claimants to proceed with execution of the court's order as directed by court, subject to any other reasonable proposal by the Respondents acceptable by court

Authorities

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Legislation

  • Constitution of KenyaArticles 159, 162(2), 164(3)
  • Industrial Court Act 2011Sections 12(3)(i) and (viii), 17(1) and (2)
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 22 rule 22, Order 42 rule 6
  • High Court (Practice and Procedure Rules) of the Judicature Act Cap 8Rule 3(1) and (2)
Jurisdiction invoked
Articles 159, 162(2) and 164(3) of the Constitution; Sections 12(3)(i) and (viii), 17(1) and (2) of the Industrial Court Act 2011; Section 3A Civil Procedure Act; Order 22 rule 22 and Order 42 rule 6 Civil Procedure Rules

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, "Kenya Union of Entertainment and Music Industry Employers v Bomas of Kenya Limited [2015] KEELRC 792 (KLR)", Case Analysis (2015). Cause No 759 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/792/eng@2015-06-30

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