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ELRCDismissedNotice of Motion dated 11th June 2015· [2016] KEELRC 561 (KLR)

John Gachau Gitonga v Nduta Mbile [2016] KEELRC 561 (KLR)

Employment and Labour Relations Court
29 June 2016
2,112 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that execution of a decreed debt including interest was lawful, dismissing claims against the auctioneer.

What this practically means

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Executive summary

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This judgment determines a Notice of Motion dated 11th June 2015 in which the applicant, the decree debtor in an employment cause decided by Ongaya J on 28th August 2012 (decree of Kshs 498,228.85 extracted 18th September 2012, with interest ordered from 5th November 2009), sought review of the ruling of Nduma J dated 29th May 2015, nullification of the proclamation and attachment of 4th March 2015, cancellation or suspension of the auctioneer's licence, and damages for illegal execution, against Keysian Auctioneers. The auctioneer defended, showing warrants of attachment dated 2nd March 2015 and instructions from the claimant and his advocates; the earlier stay of 9th November 2012 (tied to a consent recorded 9th November 2012 for payment of Kshs 16,350 and deposit of title to Ngong/Ngong/38852 as security) had lapsed because the notice of appeal was never converted into an appeal under Rules 82 and 83 of the Court of Appeal Rules. The court held the execution decree of Kshs 818,288.35 was lawful as it incorporated awarded interest, that the auctioneer held valid warrants and instructions and did not breach Rules 6 and 11(1)(a) of the Auctioneers Rules, that damages against an auctioneer lie only by civil suit under section 26 of the Auctioneers Act, and that no proper basis for review under rule 32 of the ELRC (Procedure) Rules 2010 existed, the decree having been executed. The application was dismissed with no order as to costs.

Key legal issues

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01

Lawfulness of the execution against the applicant's goods

Holding

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

Reasoning

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.

p. 4
02

Whether the auctioneer violated Rules 6 and 11(1)(a) of the Auctioneers Rules

Holding

No violation found; the property was not attached without warrants or instructions

Reasoning

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.

p. 4
03

Whether the 29th May 2015 ruling should be reviewed

Holding

Review refused; no proper basis under rule 32 of the ELRC (Procedure) Rules 2010 and execution was complete

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The application dated 11th June 2015 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 18(1)(a)
  • Court of Appeal Rules 2010Rules 82(1) and 83
  • Auctioneers Rules 1997Rules 6, 10, 11, 12(c), 16, 17, 18
  • Auctioneers ActSections 26 and 28
  • Employment and Labour Relations Court (Procedure) Rules 2010Rule 32
  • Distress for Rent Actmentioned re 14 days' notice
Jurisdiction invoked
Section 28 of the Auctioneers Act and the Employment and Labour Relations Court (Procedure) Rules 2010

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, "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.