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ELRCDismissedNot stated in judgment (consolidated with Causes Nos. 185 of 2015 and 186 of 2015)· [2016] KEELRC 77 (KLR)

Johana Kiplimo Kosgei v Mini Bakeries (Nairobi) Limited [2016] KEELRC 77 (KLR)

Employment and Labour Relations Court
8 December 2016
DMD.K. Njagi Marete
952 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to undo a completed property attachment because the applicant waited too long to challenge it.

What this practically means

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Executive summary

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The Respondent/Applicant moved the court by Notice of Motion dated 31st August 2016 (amended on 22nd September 2016, pursuant to an order of 21st September 2016), in a cause consolidated with Nos. 185 and 186 of 2015. The Applicant sought stays of proclamation and attachment, restitution of seized property, cancellation and nullification of warrants of attachment and sale issued to M/s Lifewood Traders Auctioneers for want of jurisdiction to execute orders of the Kericho High Court, a declaration that the proclamation and attachment of specified motor vehicles was null and void ab initio, and a refund of about Kshs.1.16 million allegedly extorted by the auctioneer, James O'Makori. The Applicant complained that the auctioneer's jurisdiction did not extend beyond Kitale in Trans Nzoia County, that the Taxing Master's reasons had not been supplied, and that no notice of judgment, taxation ruling, certificate of costs or decree was served. The Claimant/Respondent, the decree holder, opposed the application as fatally defective, bad in law, an abuse of process, time-barred and overtaken by events, and asserted that execution had been properly pursued to fruition. The court observed that execution in the cause had been undertaken and finalised, framed the question as whether there was justifiable cause for interfering with the execution process, and concluded that the Applicant was indolent and had slept on her rights, the application being overtaken by events. The evidence did not establish a distorted execution process. The application was dismissed with each party bearing its own costs, delivered on 8th December 2016 by D.K. Njagi Marete, Judge.

Key legal issues

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01

Whether the court should interfere with a concluded execution process

Holding

The application was dismissed; execution had been undertaken and finalised and the Applicant came to court too late

Reasoning

The court took judicial notice that execution in the cause had been undertaken and finalised. It found the Applicant indolent, having slept and sat on her rights, and held that the application was overtaken by events. The evidence and submissions did not demonstrate any distortion of the execution process, and the court suspected other underlying factors motivated the application.

p. 2
02

Whether the auctioneer acted without jurisdiction and unlawfully in attaching the Applicant's property

Holding

The claim of a distorted or unlawful execution was not made out on the evidence; the court preferred the Claimant/Respondent's case

Reasoning

The Claimant/Respondent opposed the application as fatally defective, an abuse of process, based on falsehoods and time-barred, and narrated the events leading to finalisation of execution. The court found the probability tilted in his favour and agreed that the Applicant could not claim relief so late in the day. The allegation that the auctioneer lacked jurisdiction and extorted Kshs.1,166,494 was not established.

p. 2

Legal principles established

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  • A party who is indolent and sleeps on its rights cannot obtain relief against a completed execution process at a late stage
  • An execution process that has been undertaken and finalised will only be interfered with upon a justifiable cause being shown from the pleadings and submissions

Court orders

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  1. 1.The application dated 31st August 2016 (amended 22nd September 2016) is dismissed
  2. 2.Each party bears its own costs of the application
Jurisdiction invoked
Original execution-related jurisdiction of the court over its own causes (not expressly stated in the judgment)

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, "Johana Kiplimo Kosgei v Mini Bakeries (Nairobi) Limited [2016] KEELRC 77 (KLR)", Case Analysis (2016). Not stated in judgment (consolidated with Causes Nos. 185 of 2015 and 186 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/77/eng@2016-12-08

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