Transport Workers Union v Lochab Brothers Limited [2018] KEELRC 1195 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Regularity of execution without an amended decree and notice to show cause
The execution proceedings were irregular and a nullity in part because the claimant's own admission established that execution proceeded without an amended decree and without the notice to show cause required by Order 22 Rule 18
Judgment was entered on 28 March 2014 and reviewed on 30 September 2016. After the review, an amended decree and notice to the respondent ought to have issued before execution. The claimant admitted in submissions that execution proceeded without an amended decree, casting doubt on the entire process. The court relied on Order 22 Rule 18 and the ex parte Kenya Commercial Bank authority to hold the process unprocedural and unlawful.
Irregular warrants of attachment
Even though warrants of sale were signed and sealed, the warrants of attachment were not, making the motions of attachment baseless
Relying on Republic v Commissioner of Police & 2 others ex parte Kenya Commercial Bank, the court noted that without the requisite notice, or dispensation thereof, execution is unprocedural and unlawful. On perusal of the court file, the warrants of attachment were not signed and sealed even though the warrants of sale were. The execution proceedings were therefore unjustified and the attachments had no basis.
Respondent's non-compliance with deposit orders
Although execution was flawed, the respondent's non-compliance with the 8 November 2016 and 5 January 2018 orders to deposit the decretal sum could not be encouraged, and set-aside was conditioned on deposit of the reviewed judgment sum within 14 days
The court balanced the irregularity of execution against the respondent's failure to comply with conditional stay orders requiring deposit of the decretal sum. To ensure completeness of the process and a fair footing between the parties, release of the attached vehicles and fresh taxation were granted only on condition that the respondent deposit the reviewed judgment sum of Kshs.2,655,400.00 within fourteen days.
Duty to prosecute a pending application
The respondent could not enlist the claimant's motion to have its own dormant application of 2nd November 2016 fixed for hearing; the duty to move the court lies with the party who filed the application
The application dated 2nd November 2016 had been pending since 8 November 2016. The court found no effort by the respondent to urge it. Asking for a hearing date through the claimant's application conflated the issues. The court therefore did not grant that prayer.
Legal principles established
#- Where a decree or order is more than one year old, a notice to show cause why the decree should not be executed must issue before attachment under Order 22 Rule 18 of the Civil Procedure Rules
- Following a review of a judgment, an amended decree must be extracted and notice issued before execution can lawfully proceed; execution without an amended decree is flawed
Court orders
#- 1.The execution proceedings by the claimant are set aside
- 2.The process of taxation shall commence afresh
- 3.The attached motor vehicle registration numbers KAL 670K and KAD 664G and property of the respondent shall be released
- 4.The respondent shall deposit with the court the judgement amount in terms of orders of 30th September 2016, being Kshs.2,655,400.00, within 14 days
- 5.Costs awarded to the claimant
- Jurisdiction invoked
- Rule 32(2) of the Employment and Labour Relations Court (Procedure) Rules, 2016 permitting use of the Civil Procedure Rules on execution of decrees
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Transport Workers Union v Lochab Brothers Limited [2018] KEELRC 1195 (KLR)", Case Analysis (2018). Cause No 414 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1195/eng@2018-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.