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ELRCPartially AllowedNot stated in the judgment· [2019] KEELRC 2048 (KLR)

Minnie Mbue v Jamii Bora Bank Limited & another [2019] KEELRC 2048 (KLR)

Employment and Labour Relations Court
22 March 2019
1,272 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Nairobi court cancelled an auctioneer's seizure of a company's essential work equipment but refused to refund the agreed Kshs.1.5 million fee.

What this practically means

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Executive summary

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This is a ruling on the residual prayers of an application dated 19.07.2018 filed by the 1st respondent (applicant) in a suit in which the applicant had been a judgment debtor. Prayers 1 to 3 had already been determined by a ruling of 31.07.2018. The residual prayers sought nullification of a proclamation by Chaka & Company Auctioneers dated 17.07.2018, refund of Kshs.1,500,000.00 paid as auctioneers' fees, cross-examination of the auctioneer, orders under section 28 of the Auctioneers Act, and costs on a full indemnity basis. The Court found that the applicant had voluntarily negotiated and paid the auctioneers' fee of Kshs.1,500,000.00, as confirmed by the applicant's own correspondence, and declined to order a refund, holding that the payment was valid and that section 26 of the Auctioneers Act did not apply because the application was not an 'action'. However, the Court nullified the proclamation of 17.07.2018 because the proclaimed items - computers, laptops, photocopying machines, cabinets and printers - were the applicant's books of trade and tools and implements of trade excluded from attachment under section 44(1)(ii) and (iv) of the Civil Procedure Act. A preliminary objection by the 2nd respondent claiming the Court was functus officio failed, the Court holding that matters of satisfaction of a decree are properly determined by the Court that gave the decree. No offence was disclosed to justify section 28 orders against the auctioneer's licence. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Kshs.1,500,000.00 paid as auctioneers' fee before any proclamation was recoverable by the applicant

Holding

The payment was valid; the fee was voluntarily negotiated and agreed between the applicant's Legal Manager and the auctioneer, as confirmed by the applicant's own letters (exhibits CK2, CK4 and CK6), and no ground existed to disturb the agreement.

Reasoning

The Court examined the exhibits on the replying affidavit showing that after settlement of the decretal sum by instalments was agreed, the applicant's Legal Manager undertook to negotiate and settle the auctioneers' fees directly, and confirmed the fee had been negotiated and paid. The applicant's argument based on assessment against the value of goods attached rather than the decretal sum did not displace the voluntary agreement. Section 26 of the Auctioneers Act was inapplicable because the application was not an 'action' as envisaged by that section.

p. 2
02

Whether the proclamation of 17.07.2018 was amenable to nullification

Holding

Yes. The proclaimed goods - computers, laptops, photocopying machines, cabinets and printers - were the applicant's books of trade and tools and implements of trade, excluded from attachment under section 44(1)(ii) and (iv) of the Civil Procedure Act.

Reasoning

The applicant's evidence that the proclaimed items were excluded categories under section 44(1)(ii) and (iv) was unchallenged. Although the proclamation followed pressure from the claimant's advocates who thereafter withdrew instructions, the statutory exemption applied, and the Court held the proclamation liable to nullification as prayed.

p. 2
03

Whether the Court was functus officio as urged in the preliminary objection

Holding

The preliminary objection failed; satisfaction of a decree does not amount to a fresh cause of action and is properly determined by the Court which gave the judgment and decree.

Reasoning

The 2nd respondent objected that the Court had rendered judgment in the suit and had already determined part of the application, so it was functus officio. The Court accepted the applicant's submission that execution and satisfaction matters remain within the competence of the Court that issued the decree, and dismissed the objection.

p. 2

Legal principles established

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  • Matters of satisfaction of a decree do not amount to a fresh cause of action and are properly determined by the Court which gave the judgment and decree; such a Court is not functus officio in dealing with execution-related applications.
  • Books of trade and tools and implements of a person in the performance of its trade or profession are excluded from proclamation and attachment under section 44(1)(ii) and (iv) of the Civil Procedure Act, and a proclamation attaching such goods is liable to be nullified.
  • Where parties voluntarily agree on auctioneers' fees and there is no established ground to interfere with the agreement, the Court will respect the parties' contractual position.

Court orders

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  1. 1.The proclamation by Charles Mwangi Kamande t/a Chaka & Company Auctioneers dated 17.07.2018 is nullified
  2. 2.The preliminary objection filed on 23.07.2018 for the 2nd respondent is dismissed
  3. 3.Each party to bear own costs of the application and the preliminary objection
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over satisfaction of its decree, under the Civil Procedure Act (sections 1A, 1B, 3A and 44(1)(ii) and (iv)) and the Auctioneers Act (sections 26 and 28)

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, "Minnie Mbue v Jamii Bora Bank Limited & another [2019] KEELRC 2048 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2048/eng@2019-03-22

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