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ELRCDismissedApplication dated 17th December 2018 (in the suit whose judgment was delivered 13th June 2018)· [2019] KEELRC 1745 (KLR)

David Mutemi Ngumi v Kamili Packers Limited [2019] KEELRC 1745 (KLR)

Employment and Labour Relations Court
30 April 2019
2,119 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that skipping the formal step of sharing a draft decree before execution does not invalidate attachment of a debtor's goods.

What this practically means

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Executive summary

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This was a ruling on an application dated 17th December 2018 brought under Order 22 Rule 22 and Order 21 Rule 8 of the Civil Procedure Rules seeking stay of execution of a judgment delivered on 13th June 2018 in favour of the Claimant for KShs. 197,398.00 plus taxed costs of KShs. 138,630.00, lifting of warrants of attachment dated 10th December 2018 and a proclamation dated 11th December 2018, and a declaration that they were a nullity. The Applicant argued that the Claimant's advocates extracted the decree without submitting a draft decree to the Applicant for approval as required by Order 21 Rule 8, rendering the execution process unlawful; the Applicant relied on Ecobank Kenya Ltd v Afrikon Ltd, Edward Kamau v Hannah Mukui Gichuki and David Makau v Maua Mutie Ndunda, and on Nyamodi Ochieng Nyamogo v Telkom Kenya Ltd, urging that the execution be set aside entirely. It also claimed payment was made before the proclamation. The Claimant countered that the rule is not mandatory, that the decree reflected the judgment, that Article 159(2)(d) required the Court to overlook the procedural technicality, and that auctioneers' fees become payable upon instructions. Relying on Nyamogo v Telkom Kenya and Erad Suppliers v National Cereals and Produce Board, Justice Hellen Wasilwa held that Order 21 Rule 8 is not couched in mandatory terms, that its purpose is to ensure the decree corresponds to the judgment, and that the Deputy Registrar had signed a decree in conformity with the judgment. The Court found the auctioneer had been instructed before the cheque was issued and declined to lift the warrants, directing that the auctioneers' fees be resolved by the parties or the Deputy Registrar, with costs to the Respondents.

Key legal issues

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01

Whether the procedure in Order 21 Rule 8 for extracting a decree is mandatory

Holding

The rule is not mandatory; its main purpose is to ensure the decree corresponds to the judgment, and the Deputy Registrar's duty is to confirm this

Reasoning

The Court examined Order 21 Rule 8 including sub-rule 7, which preserves the court's power to approve a draft decree at the time of pronouncing judgment notwithstanding non-compliance. The rule's rationale is that the decree reflect the terms of the judgment; the Deputy Registrar is not bound by a draft approved by the parties. Failure to submit a draft for approval therefore does not invalidate the decree or the execution founded on it.

p. 3
02

Whether the attachment and proclamation were a nullity

Holding

No; the decree was signed by the Deputy Registrar and was in conformity with the judgment, so execution was lawful

Reasoning

Having found the decree validly extracted, the Court held the Claimant was entitled to levy execution. The Court also found no proof that payment preceded the proclamation: the Applicant would have served proof of payment on the Auctioneer at the time of proclamation, but did not. The Auctioneer had been instructed before the cheque was issued.

p. 3
03

Whether the Applicant paid the decretal sum before the proclamation

Holding

The Court found the cheque was issued after the proclamation and after the Auctioneer had been instructed

Reasoning

The Applicant contended auctioneers visited at 2:30pm after a cheque had been disbursed; the Claimant maintained proclamation occurred in the morning prompting payment. The Court reasoned that if the cheque preceded the proclamation, a copy would have been served on the Auctioneer, and there was no indication of that. The auctioneers' fees remained payable, to be resolved by the parties or the Deputy Registrar.

p. 3

Legal principles established

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  • Order 21 Rule 8 of the Civil Procedure Rules is not couched in mandatory terms; the paramount consideration is that the decree corresponds to the judgment of the Court, not approval of the draft by the parties
  • Failure to share a draft decree with the other party does not render the execution process illegal or null and void where the decree accords with the judgment

Court orders

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  1. 1.Application dismissed - the Court declined to lift the warrants of attachment and proclamation of the Applicant's goods
  2. 2.The issue of the Auctioneer's costs and any fees pending to be resolved either by the Parties or by the Deputy Registrar
  3. 3.Costs of the application to the Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 21 Rule 8
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (5)

  • Ecobank Kenya Limited vs. Afrikon Limited
    [2017] eKLR
  • Edward Kamau & Another vs. Hannah Mukui Gichuki & Another
    [2015] eKLR
  • David Makau vs. Maua Mutie Ndunda
    [2017] eKLR
  • Nyamodi Ochieng Nyamogo vs. Telkom Kenya Limited
    [2016] eKLR
  • Erad Suppliers and General Contractors vs. National Cereals and Produce Board
    [2012] eKLR
Jurisdiction invoked
Order 22 Rule 22 and Order 21 Rule 8 of the Civil Procedure Rules and all other enabling provisions of law

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "David Mutemi Ngumi v Kamili Packers Limited [2019] KEELRC 1745 (KLR)", Case Analysis (2019). Application dated 17th December 2018 (in the suit whose judgment was delivered 13th June 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1745/eng@2019-04-30

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