Maurice Ndiku Kilonzo v Dawa Limited [2017] KEELRC 1702 (KLR)
The bottom line
#A Kenyan employment court ruled that disputes over how a judgment is executed belong with the Deputy Registrar, and paused the attachment meanwhile.
What this practically means
#Executive summary
#Key legal issues
#Whether execution commenced more than one year after judgment without a Notice to Show Cause was irregular
The court rejected the contention that execution came over one year after judgment, holding that the consent on costs of 26/1/2016 marks the effective date of entry of judgment and costs
Judgment was delivered on 17.6.2015, but taxation proceeded and a consent on costs was recorded on 26/1/2016. The court treated that consent as the effective date when both judgment and costs were entered. Execution commenced on 15th July 2016, within one year of that date, so the Applicant's one-year contention failed on the facts.
The proper forum for challenging the regularity of execution
Challenges to whether an execution process is wrong lie with the Deputy Registrar under Order 22 Rule 6, and the Applicant's choice to litigate before the judge was misplaced
The court noted that whether a decree was taken out before execution was a matter that should have been argued before the Deputy Registrar who handles execution proceedings. The Applicants elected to file and prosecute the application before the Employment & Labour Relations Court. The court directed that the application for execution be directed at the proper court and referred the merits to the Deputy Registrar.
Interim protection pending the Deputy Registrar's directions
The court stayed the execution process so far commenced pending further directions from the Deputy Registrar
Having referred the dispute over the regularity of the proclamation and attachment to the Deputy Registrar, the court preserved the status quo by staying the execution process already commenced until the Deputy Registrar gave further directions, without ruling on the merits of the irregularity allegations.
Legal principles established
#- Objections to the regularity of an execution process are for the Deputy Registrar under Order 22 Rule 6, not the judge, where the applicant elects to bring the matter before the court
- For purposes of computing the one-year period for a Notice to Show Cause before execution, the effective date is when both judgment and costs were entered
Court orders
#- 1.The application for execution is to be directed at the proper Court
- 2.The merits or otherwise of the application are to be handled by the Deputy Registrar for further directions
- 3.The execution process so far commenced is stayed until further direction by the Deputy Registrar
- Jurisdiction invoked
- Section 12(3)(i), (ii), (iv) & (viii) of the Industrial Court Act 2011; Section 3A of the Civil Procedure Act; Order 22 Rule 22 and Order 42 Rule (6) of the Civil Procedure Rules; Rule 16 of the Industrial Court (Procedure) Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maurice Ndiku Kilonzo v Dawa Limited [2017] KEELRC 1702 (KLR)", Case Analysis (2017). Not stated on the face of the judgment (Notice of Motion dated 25.7.2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1702/eng@2017-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.