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ELRCDismissedNot stated in judgment· [2015] KEELRC 1056 (KLR)

Anne Kirumba Riungu v Telkom Kenya Limited [2015] KEELRC 1056 (KLR)

Industrial Court of Kenya (now Employment and Labour Relations Court)
19 May 2015
MMM. Mbaru
1,024 words in judgment
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The bottom line

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A Kenyan employment court refused to stop the sale of an attached vehicle because the payment claim lacked evidence and the stay issue had already been decided.

What this practically means

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Executive summary

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The respondent filed an application on 15th December 2014 (amended on 12th February 2015) under section 12(3) of the Industrial Court Act seeking to restrain the claimant's proclamation and attachment of motor vehicle registration No. KAT 667X in execution of a judgment of Kshs.1,946,062.96, and seeking release of the vehicle. The respondent asserted that it had settled the entire decretal amount, including statutory deductions evidenced by a KRA letter dated 22nd January 2015, and that continued attachment was illegal and amounted to double enrichment since the decretal sum had been deposited with the claimant's advocates. The claimant opposed, stating that only part payment had been made and the balance, allegedly KRA tax dues, was unproven. The court applied the principles in Mukuma v Abuoga on restraining orders, holding that such orders require a basis that is not already settled. Since the court had already ruled on stay of execution on 20th March 2014 and the respondent had an appeal pending before the Court of Appeal, the court held it had become functus officio and could not revisit the issue without sitting on appeal over itself. Further, compliance with section 49(2) of the Employment Act required documentary evidence; the KRA letter, not annexed to either application but produced with submissions, was not evidence of payment of the judgment amount. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Functus officio and revisiting stay of execution

Holding

The court could not entertain an application touching on stay of execution it had already ruled on; the proper forum was the Court of Appeal where an appeal was pending

Reasoning

Judgment had been delivered and a ruling on stay issued on 20th March 2014. The respondent had already sought and been refused stay in the High Court and had moved to the Court of Appeal. Inviting the trial court back to make further directions on the same issue would amount to the court sitting on appeal over itself and would be a miscarriage of justice. The court thereby became functus officio.

p. 2
02

Evidential burden of proving payment/settlement of decretal sum

Holding

A party alleging compliance with section 49(2) of the Employment Act and payment of statutory deductions must produce documentary evidence with the application; a KRA letter produced with submissions is insufficient and is not proof of payment

Reasoning

The respondent claimed the decretal balance related to KRA tax dues but the KRA letter dated 22nd January 2015 was never attached to either the original or amended application. Attaching it only with submissions removed it from the core evidence and denied the claimant an opportunity to respond. Moreover, such a confirmation letter is not itself evidence of payment of the judgment amount. No evidence of payment was found.

p. 2
03

Injunction/restraining orders under section 12(3) of the Industrial Court Act

Holding

An applicant seeking restraining orders must have a basis that is not already settled; such orders cannot be an end in themselves

Reasoning

Relying on Mukuma v Abuoga, the court held that injunction or restraint applications require an underlying basis such as a claim, petition or memoranda. Since the claim had been heard, judgment delivered and stay issues resolved, there was no fresh basis for restraining orders. The application therefore failed.

p. 2

Legal principles established

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  • Compliance with section 49(2) of the Employment Act must be proved by evidence annexed to the affidavit, not left to submissions
  • A court that has already ruled on stay of execution and become functus officio cannot be invited to revisit the same issue; the next forum is the Court of Appeal

Court orders

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  1. 1.Application dated 15th December 2014 and amended application dated 12th February 2015 dismissed
  2. 2.Each party to meet their own costs

Authorities

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Legislation

  • Industrial Court ActSection 12(3)
  • Employment ActSection 49(2)

Cases cited (2)

  • Lakeland Motor Limited v Harbhajan Singh Sembi
    Civil Appeal No. 24 of 1998
  • Mukuma v Abuoga
    (1988) KLR 645
Jurisdiction invoked
Section 12(3) of the Industrial Court Act

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, "Anne Kirumba Riungu v Telkom Kenya Limited [2015] KEELRC 1056 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1056/eng@2015-05-19

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