John Gachau Gitonga v Nduta Mbile [2016] KEELRC 561 (KLR)
The bottom line
#Kenya's Employment Court ruled that execution of a decreed debt including interest was lawful, dismissing claims against the auctioneer.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of the execution against the applicant's goods
The execution was lawful: the decree of Kshs 818,288.35 included interest awarded by the court and was not in excess of the judgment; the auctioneer held valid warrants and instructions
The court found the decree for Kshs 498,228.85 did not include interest, but the judgment awarded interest from 5th November 2009 until payment in full, so the higher sum was proper. Warrants of attachment dated 2nd March 2015 were issued by the court, and instructions were given by the claimant in person and reiterated by his advocates. By the time of attachment the earlier stay had lapsed as the appeal was never instituted.
Whether the auctioneer violated Rules 6 and 11(1)(a) of the Auctioneers Rules
No violation found; the property was not attached without warrants or instructions
The court accepted the auctioneer's sworn evidence that he received warrants of attachment dated 2nd March 2015 issued by the court and that instructions came from the claimant personally and were later reiterated by the claimant's advocates. The court therefore rejected the assertion of attachment without warrants or instructions.
Whether the 29th May 2015 ruling should be reviewed
Review refused; no proper basis under rule 32 of the ELRC (Procedure) Rules 2010 and execution was complete
The applicant argued the court's attention had not been drawn to the prior stay order and matter history. The court held no proper basis for review was set out under rule 32 and, the decree having been executed, it would not issue orders in vain.
Legal principles established
#- Damages for unlawful or improper exercise of power by a licensed auctioneer must be recovered by an action (civil suit), not by interlocutory application
- A court will not issue orders in vain where the judgment and decree have already been executed
- Where an appeal is not instituted within the prescribed time, the notice of appeal is deemed withdrawn and a stay tied to it lapses
Court orders
#- 1.The application dated 11th June 2015 is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Section 28 of the Auctioneers Act and the Employment and Labour Relations Court (Procedure) Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Gachau Gitonga v Nduta Mbile [2016] KEELRC 561 (KLR)", Case Analysis (2016). Notice of Motion dated 11th June 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/561/eng@2016-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.