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ELRCPartially AllowedApplication dated 16th May 2016· [2016] KEELRC 539 (KLR)

Peris Nyambura Kimani v Dalbit Petrolium Limited [2016] KEELRC 539 (KLR)

Employment and Labour Relations Court
19 July 2016
MMM. Mbaru
918 words in judgment
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The bottom line

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A Kenyan court lifted attachment warrants built on inflated figures, confirming that execution based on wrong numbers is invalid.

What this practically means

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Executive summary

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This ruling by the Employment and Labour Relations Court at Nairobi (M. Mbaru, J) determined an application dated 16th May 2016 by Dalbit Petroleum Limited, the respondent in the main suit, seeking stay of execution, and setting aside, of warrants of attachment and proclamation of attachment dated 11th May 2016 issued at the instance of the petitioner. The respondent argued that the warrants did not conform to the judgment and certificate of taxation: taxed costs were Kshs.449,208.00 yet the warrants showed Kshs.3,600,000.00, and the proclamation claimed Kshs.8,720,625.00, threatening unjust enrichment and irreparable loss. The petitioner replied that it held a valid judgment delivered on 9th July 2015, that no stay had been granted either in this court or before the Court of Appeal where a similar application was pending, and that the respondent had paid nothing. At the hearing the parties recorded a consent fixing the decretal amount at Kshs.5,240,940.40, providing for payment of Kshs.1,640,940.40 by 9th June 2016, with Kshs.3,600,000.00 to abide the determination of the application, and auctioneer's costs left unresolved. The court found the petitioner's computations in the proclamation and warrants erroneous and held that execution founded on such erroneous figures was a nullity. The application was allowed: the warrants and proclamation were lifted, interest at court rates was to apply on default under the consent, and each party was to bear their own costs, the respondent having made no tangible effort to settle the uncontested decretal sum.

Key legal issues

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01

Whether warrants of attachment founded on erroneous computations are lawful

Holding

The warrants and proclamation based on erroneous figures (Kshs.8,720,625.00 instead of the agreed Kshs.5,240,940.00) were a nullity and were lifted

Reasoning

The judgment fixed the decretal amount, but the proclamation and warrants contained grossly exaggerated figures, with taxed costs of Kshs.449,208.00 shown as Kshs.3,600,000.00. The auctioneer's estimated costs of Kshs.965,500.00 arose from these errors. The court held that instructions to an auctioneer based on erroneous figures and computations render the attachment process a nullity, and such errors should not be visited upon either party.

p. 2
02

Conduct of the parties in execution

Holding

While the execution documents were defective, the petitioner had lawfully pursued its judgment and the respondent had not paid anything; accordingly the respondent was denied costs

Reasoning

The court acknowledged the petitioner's lawful efforts to execute a valid judgment delivered on 9th July 2015, with no stay subsisting. The respondent, despite contesting amounts, had made no tangible effort to settle the uncontested decretal sum. This informed the decision that neither party should bear the other's costs.

p. 2

Legal principles established

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  • An execution process founded on erroneous figures and computations is a nullity and such errors should not be visited upon the parties
  • Errors in a decree that fail to factor statutory provisions should be rectified by the court before execution proceeds

Court orders

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  1. 1.Warrants of attachment and proclamation of attachment both dated 11th May 2016 are hereby lifted
  2. 2.Where the terms of the consent dated 3rd June 2016 are not adhered to, the decretal amount shall attract interests at court rates until payment in full
  3. 3.Each party shall bear their own costs
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over its own decree and execution process

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, "Peris Nyambura Kimani v Dalbit Petrolium Limited [2016] KEELRC 539 (KLR)", Case Analysis (2016). Application dated 16th May 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/539/eng@2016-07-19

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