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ELRCPartially AllowedCause No 1492 of 2015· [2019] KEELRC 2040 (KLR)

Kenya Concrete Structural Ceramics Tiles Woodply & Interiors Designs Workers Union v Landmark Holdings [2019] KEELRC 2040 (KLR)

Employment and Labour Relations Court
22 March 2019
BOByram Ongaya
886 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cancelled a Kshs.117 million execution against Landmark Holdings because the union obtained ex parte orders without hearing the company or disclosing key facts.

What this practically means

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Executive summary

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The court had on 31.07.2018 delivered judgment for the claimant trade union against Landmark Holdings, ordering deduction and remittance of union dues, compliance with statutory minimum wages, execution of a recognition agreement and negotiation of a CBA, plus partial costs fixed at Kshs.100,000.00. On 27.11.2018, on a notice of motion dated 15.11.2018, the court authorised the deputy registrar to adopt a computation of non-remitted union dues and underpayment and permitted the claimant to proceed with execution; warrants of attachment and execution dated 05.12.2018 were issued for Kshs.117,784,660.85. The applicant moved the court under sections 1A, 1B and 34(1) of the Civil Procedure Act and Order 21 rule 52 and Order 51 rule 15 of the Civil Procedure Rules, seeking stay of the warrants and setting aside of the 27.11.2018 order. It argued that the judgment never awarded Kshs.117,784,660.85, that the Kshs.100,000.00 costs had been settled, and that it was neither served nor heard on the motion. The claimant, through its Secretary General's affidavit, maintained it was executing for underpayments the court had ordered tabulated. The court found that the claimant had failed to exhibit any order supporting the computation, and that the ex parte orders were obtained without giving the respondent an opportunity to be heard and through material non-disclosure, applying Gotv Kenya Limited v Royal Media Services. The application was allowed: the order of 27.11.2018 and all consequential processes, including the warrants of attachment and execution, were set aside, with costs of the application to the applicant.

Key legal issues

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01

Whether the ex parte orders of 27.11.2018 should be set aside for material non-disclosure and denial of hearing

Holding

The orders were set aside in their entirety together with the consequential warrants of attachment and execution

Reasoning

The respondent was neither served nor heard on the notice of motion dated 15.11.2018, constituting a gross miscarriage of justice. Further, the judgment of 31.07.2018 awarded only declaratory and directive relief plus fixed costs of Kshs.100,000.00 (already settled), and never awarded Kshs.117,784,660.85 as proclaimed by the claimant's auctioneers. The claimant failed to exhibit any order for the computation, amounting to material non-disclosure, a recognised ground for discharging ex parte orders.

p. 2
02

Whether the claimant could execute for monies not awarded in the judgment

Holding

Execution could not lie on the computation of Kshs.117,784,660.85 as it was not decreed

Reasoning

The claimant asserted it was executing for underpayments the court had ordered tabulated, but the court found the claimant had failed to exhibit orders upon which the computation was based. The warrants of attachment for Kshs.117,784,660.85 contradicted the decree of 31.07.2018, which had only awarded union dues deduction and remittance, compliance with statutory minimum wages, entry into a recognition agreement, and fixed costs of Kshs.100,000.00 already settled.

p. 2

Legal principles established

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  • Concealment of material facts or material non-disclosure is a known ground for discharging an ex parte order
  • A party seeking orders ex parte must not have obtained them without giving the other side an opportunity to be heard; orders obtained where the respondent was not heard are liable to be set aside

Court orders

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  1. 1.The order given on 27.11.2018 issued on 28.11.2018 is set aside
  2. 2.All consequential processes flowing from that order, including the warrants of attachment and execution dated 05.12.2018, are set aside
  3. 3.The claimant to pay the applicant's costs of the application

Authorities

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Legislation

  • Civil Procedure Actsection 1A & 1B
  • Civil Procedure Actsection 34(1)
  • Civil Procedure RulesOrder 21 rule 52
  • Civil Procedure RulesOrder 51 rule 15

Cases cited (1)

  • Gotv Kenya Limited –Versus- Royal Media Services
    [2015] eKLR
Jurisdiction invoked
Sections 1A & 1B and 34(1) of the Civil Procedure Act, Order 21 rule 52 and Order 51 rule 15 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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Cite this brief

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Cite this brief

Caselaw, "Kenya Concrete Structural Ceramics Tiles Woodply & Interiors Designs Workers Union v Landmark Holdings [2019] KEELRC 2040 (KLR)", Case Analysis (2019). Cause No 1492 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2040/eng@2019-03-22

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