Joyce Wambui Karuu v Kenya Nut Company Limited [2020] KEELRC 956 (KLR)
The bottom line
#A Kenyan employment court voided auction warrants issued before legal costs were taxed, but refused to overturn the underlying judgment awarding compensation for unfair termination.
What this practically means
#Executive summary
#Key legal issues
#Whether execution before taxation of costs was irregular
The warrants of sale were irregular because the claimant executed the decree before taxation without leave of the court under Section 94 of the Civil Procedure Act
Section 94 bars execution of a decree, as regards costs, before they are ascertained by taxation, unless the court grants leave. The applicant cited Bullion Bank, Bamburi Portland Cement and Lakeland Motors to that effect. The court adopted those principles and held that the warrants issued to Bemac Auctioneers at the instance of the claimant, issued before taxation and without leave, were irregular and liable to be set aside.
Whether the Order 22 Rule 18 notice to show cause was required
Order 22 Rule 18 was inapplicable because the application for execution was made within one year of the decree
The judgment was delivered on 26th January 2018 and the decree issued on 6th May 2019; warrants issued on 22nd August 2019, well within a year of the decree. Rule 18(1)(a) requires notice only where execution is sought more than one year after the decree, so no notice was necessary. The irregularity instead lay in the failure to obtain leave under Section 94 before executing prior to taxation.
Whether the judgment contained an error apparent on the face of the record warranting review
No; the court consciously granted compensation for unfair termination as a matter of substance rather than pleading labels
The applicant argued the court awarded compensation not pleaded. The court found the claimant's prayer for loss of earnings arising from summary dismissal was the same relief as compensation for unfair termination, a matter of semantics. A conscious decision on submissions is not an error apparent on the face of the record, and review on that ground fails. Additionally, the application was filed almost 20 months after judgment without explanation, being mischievous and in bad faith.
Legal principles established
#- A decree may not be executed before taxation of costs unless leave of the court is obtained under Section 94 of the Civil Procedure Act
- No notice to show cause under Order 22 Rule 18 is required where execution is applied for within one year of the decree
- An error apparent on the face of the record must be self-evident and require no elaborate argument
Court orders
#- 1.The application granted only on the ground that the claimant did not seek leave of the court before applying for execution
- 2.The warrants of sale of property issued to Bemac Auctioneers set aside/vacated as irregular
- 3.The prayer for review and/or setting aside of the judgment and decree of 26th January 2018 dismissed
- 4.The respondent/applicant to bear the costs of the application
- Jurisdiction invoked
- Section 16 of the Employment and Labour Relations Court Act and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joyce Wambui Karuu v Kenya Nut Company Limited [2020] KEELRC 956 (KLR)", Case Analysis (2020). Cause No 37 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/956/eng@2020-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.