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ELRCPartially AllowedNot stated in the excerpt provided· [2020] KEELRC 77 (KLR)

Teresiah Wanjiru Ndegwa v Barclays Bank Limited [2020] KEELRC 77 (KLR)

Employment and Labour Relations Court
17 December 2020
HWHellen Wasilwa
634 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court let a winning party fix a procedural slip rather than lose their judgment, and confirmed interest at 6% applies even when the judgment is silent.

What this practically means

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Executive summary

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This was a Notice of Motion dated 13th November 2020, filed by the respondents in the underlying claim, seeking a stay of execution, setting aside of the decree and warrants of execution issued by the Deputy Registrar, on the grounds that the decree was irregular, the assessment of costs erroneous, no draft decree had been served for approval before warrants issued, and an appeal was pending. The applicants relied on David Makau vs Muau Ndenda and BOG Tambach Teachers Training College, arguing that failure to share a draft decree breaches the right to fair hearing under Article 50(1) of the Constitution. The claimant/respondent opposed through a replying affidavit, contending the application was misconceived and designed to evade interest on the decretal sum, and relied on section 26(2) of the Civil Procedure Act as applied in BOG Tambach Teachers Training College vs Mary Kipchumba. The court found that its judgment had not pronounced itself on interest, so section 26(2) applied, deeming interest at 6% per annum; accordingly the argument that execution on interest was not permissible failed. The court also found no indication that a draft decree had been shared for approval before execution. However, rather than setting aside the decree and warrants, the court allowed the respondent to correct the omission by sharing a draft decree within two weeks, failing which execution could proceed. The application was thus partially allowed; no costs order was recorded.

Key legal issues

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01

Whether execution could proceed without a draft decree being served for approval

Holding

The court found that no draft decree was shared with the applicants before execution, an omission that required correction

Reasoning

The applicants asserted no draft decree was served for approval before warrants issued. The court found no indication the respondent shared a draft decree. Rather than setting aside the decree and warrants, the court treated the irregularity as curable, allowing the respondent two weeks to share a draft decree, failing which execution could proceed.

p. 2
02

Whether interest on the decretal sum was recoverable where the judgment was silent

Holding

Yes; section 26(2) of the Civil Procedure Act applies, deeming interest at 6% per annum from the date of decree to payment

Reasoning

The court noted that its judgment did not pronounce itself on interest in the decretal sum. It held that in such silence, section 26(2) of the Civil Procedure Act comes into play, deeming the court to have ordered interest at 6% per annum. The respondent's argument that the applicants could not execute on interest was therefore rejected.

p. 1

Legal principles established

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  • Where a decree is silent on further interest, the court is deemed to have ordered interest at 6% per annum under section 26(2) of the Civil Procedure Act
  • Failure to afford a party the opportunity to consider and approve a draft decree breaches the right to fair hearing under Article 50(1) of the Constitution

Court orders

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  1. 1.The respondents are given 2 weeks to correct the omission and share a draft decree for payment/approval
  2. 2.In default of payment, the respondent may proceed with execution

Authorities

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Legislation

  • Civil Procedure Actsection 26(1) and 26(2)
  • Civil Procedure RulesOrder 21 Rule 8
  • Constitution of KenyaArticle 50(1)

Cases cited (2)

  • David Makau vs Muau Ndenda
    CA 72 of 2004
  • BOG Tambach Teachers Training College vs Mary Kipchumba
    (2018) eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over its own decree and execution; application brought under Certificate of Urgency by Notice of Motion

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, "Teresiah Wanjiru Ndegwa v Barclays Bank Limited [2020] KEELRC 77 (KLR)", Case Analysis (2020). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/77/eng@2020-12-17

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