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ELRCPartially AllowedCause No 37 of 2012· [2020] KEELRC 956 (KLR)

Joyce Wambui Karuu v Kenya Nut Company Limited [2020] KEELRC 956 (KLR)

Employment and Labour Relations Court
29 May 2020
4,177 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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The respondent filed a notice of motion dated 4th September 2019 seeking stay of execution of the judgment and decree of 26th January 2018, setting aside warrants of sale and a proclamation notice issued through Bemac Auctioneers, and review/setting aside of the judgment on the ground of error apparent on the face of the record. The respondent contended that the claimant commenced execution without taxing the bill of costs and without the notice to show cause required under Order 22 Rule 18(1)(a) of the Civil Procedure Rules. The claimant opposed, asserting the execution was regular, the applicant was indolent, and the application was intended to deny her the fruits of a judgment of Kshs.368,976. The court held that no notice to show cause was necessary since execution was sought within one year of the decree. However, under Section 94 of the Civil Procedure Act, execution before taxation requires leave of the court, which was never sought; the warrants of sale were therefore irregular and the application succeeded to that extent only. On review, the court found no error apparent on the face of the record: the judgment had consciously awarded maximum compensation for unfair termination, treating the pleaded loss of earnings as the same relief. Further, the review application was filed almost 20 months after judgment with no explanation for the delay, and was dismissed as mischievous and made in bad faith. The respondent was ordered to bear the costs of the application.

Key legal issues

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01

Whether execution before taxation of costs was irregular

Holding

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

Reasoning

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.

p. 4
02

Whether the Order 22 Rule 18 notice to show cause was required

Holding

Order 22 Rule 18 was inapplicable because the application for execution was made within one year of the decree

Reasoning

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.

p. 4
03

Whether the judgment contained an error apparent on the face of the record warranting review

Holding

No; the court consciously granted compensation for unfair termination as a matter of substance rather than pleading labels

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The application granted only on the ground that the claimant did not seek leave of the court before applying for execution
  2. 2.The warrants of sale of property issued to Bemac Auctioneers set aside/vacated as irregular
  3. 3.The prayer for review and/or setting aside of the judgment and decree of 26th January 2018 dismissed
  4. 4.The respondent/applicant to bear the costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 94
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 22 Rule 18(1)(a)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure RulesOrder 42
  • Employment and Labour Relations Court ActSection 16
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 32(2), Rule 33
  • Industrial Court Act, 2011Section 16
  • Industrial Court (Procedure) Rules 2010Rule 32(1)
  • Constitution of KenyaArticle 159(2)(d), Article 48

Cases cited (11)

  • Bullion Bank Limited v James Kinyanjui & Another
    [2006] eKLR
  • Bamburi Portland Cement Co. Ltd v Hussein
    (1995) LLR 1870 (CAK)
  • Lakeland Motors Ltd v Sembi
    (1998) LLR 682 (CAK)
  • Peter Wambugu Kariuki and 16 Others v Kenya Agricultural Research Institute
    [2018] eKLR
  • National Bank of Kenya Limited v Ndungu Njau
    [1997] eKLR
  • David Sirongo Ole Tukai v Francis Arap Muge & 2 Others
    [2014] eKLR
  • Machira t/a Machira and Company Advocates v East Africa Standard (No. 2)
    (2002) KLR 63
  • Antoine Ndiaye v African Virtual University
    [2015] eKLR
  • Abdi Ali Noor v Transami (Kenya) Limited
  • Motres Limited v Akamba Road Services Limited & Another
  • Nyamogo and Nyamogo Advocates v Kogo
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

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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, "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.