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ELRCPartially AllowedCause No 2164 of 2012· [2018] KEELRC 963 (KLR)

Kenya Scientific Research International Technical and Allied Institutions Workers Union v M/S Friends Community Centre Ofafa Nairobi & 2 others [2018] KEELRC 963 (KLR)

Employment and Labour Relations Court
12 October 2018
2,748 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan employment court stopped a trade union from executing a decree the employer had already paid in full back in 2014.

What this practically means

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Executive summary

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The Respondents, through the chairperson of the 1st Respondent's Management Board, applied for temporary and permanent injunctions and a stay of execution of a decree issued on 9th July 2014, contending that the decretal sum agreed in a consent dated 10th April 2014 (Kshs.250,000 all-inclusive plus Kshs.30,000 costs) had been fully paid by cheques delivered and acknowledged in September and October 2014. The Claimant union opposed, alleging partial payment and claiming interest had accrued, raising the sum due to about Kshs.391,601, of which only Kshs.250,000 had been recovered. The Claimant had obtained warrants of execution and proclaimed the Respondents' property for sale. The Respondents also argued that the firm of Ochanda Onguru and Company Advocates was improperly on record, having never sought leave after judgment under Order 9 Rule 9. The court held that Order 9 Rule 9 did not apply since the claimant was unrepresented before judgment; the firm was properly on record. However, the court agreed that execution was irregular because the decretal sum was paid back in 2014, as the claimant itself confirmed by letter dated 28th October 2014 acknowledging full payment except interest. The application was allowed: the court declared the consent amount fully settled, declared the execution irregular, issued a permanent injunction against further execution, cancelled the warrants issued to High Class Auctioneers, and awarded costs of the application to the Respondents.

Key legal issues

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01

Whether Ochanda Onguru and Company Advocates were properly on record for the Claimant

Holding

The firm was properly on record because the claimant was not represented by an advocate before judgment, so Order 9 Rule 8 and not Order 9 Rule 9 applied; the firm filed a Notice of Appointment dated 9th November 2016

Reasoning

The applicant argued that the firm needed leave to come on record after judgment under Order 9 Rule 9, relying on Florence Hare Mkali. The court held that provision is inapplicable where the party was not represented before judgment; the claimant had sued through its officials without an advocate, and the firm had filed a notice of appointment, making it properly on record.

p. 4
02

Whether execution of the decree was irregular

Holding

Execution was irregular because the decretal sum had been paid in 2014, as acknowledged by the claimant's letter of 28th October 2014 confirming full payment save for interest

Reasoning

The record showed two cheques totalling Kshs.250,000 received by the claimant on 26th September 2014 and a cheque for Kshs.30,000 in costs received on 17th October 2014. The claimant's own letter of 28th October 2014 confirmed full payment with the exception of interest, yet a decree for Kshs.391,601 was obtained and warrants issued in 2018.

p. 4
03

Whether the consent sums were fully settled

Holding

The court declared the full amount agreed under the consent fully settled

Reasoning

The consent recorded on 9th July 2014 required Kshs.250,000 all-inclusive terminal benefits plus Kshs.30,000 costs. Both amounts were received and acknowledged by the claimant union. The claimant's contention that a balance of Kshs.141,601 remained, arising from interest, could not stand given its own acknowledgement of full payment.

p. 4

Legal principles established

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  • Where the decretal amount has been paid in accordance with a consent adopted as a court order, execution on the decree is irregular
  • Order 9 Rule 9 of the Civil Procedure Rules applies only where a party was represented by an advocate before judgment; Order 9 Rule 8 governs parties who acted in person

Court orders

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  1. 1.Declaration that the full amount agreed on as per consent dated 10th April 2014, filed in court on 22nd April 2014 and adopted by the court on 9th July 2014, has been fully settled
  2. 2.Declaration that the execution herein is irregular
  3. 3.Permanent injunction prohibiting the claimant, auctioneers acting under its instructions or any person claiming through the claimant from any further execution of the decree
  4. 4.Withdrawal and cancellation of the warrants of attachment of movable property issued to High Class Auctioneers
  5. 5.Claimant to pay costs of the application to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 40 Rules 1 and 2
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 9 Rule 7
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 9 Rule 8
  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)
  • Constitution of KenyaArticle 159

Cases cited (6)

  • Florence Hare Mkali v Pwani Tawakal Mini Coach & another
    (2014) eKLR
  • John Langat v Kipkemoi Terer & 2 Others
    (2013) eKLR
  • Lalji Karsan Rabadia & 2 Others v Commercial Bank of Africa Limited
    [2015] eKLR
  • Wallis v. Smith
  • Johnson Kiweji v Barclays Bank of Kenya Ltd, Kisumu HCCC No. 171 of 2003
  • Kenya Planters Cooperative Union Ltd v Kenya Commercial Bank Limited & 4 others
    (2016) eKLR
Jurisdiction invoked
Article 159 of the Constitution of Kenya; Order 22 Rule 22, Order 40 Rules 1 and 2, Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act

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, "Kenya Scientific Research International Technical and Allied Institutions Workers Union v M/S Friends Community Centre Ofafa Nairobi & 2 others [2018] KEELRC 963 (KLR)", Case Analysis (2018). Cause No 2164 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/963/eng@2018-10-12

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