Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedApplication dated 15th August, 2019· [2020] KEELRC 1596 (KLR)

Ruth Wairimu Muigai v Leonard Githaiga Kamau t/a Gituamba Hotel [2020] KEELRC 1596 (KLR)

Employment and Labour Relations Court
23 January 2020
876 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled auctioneers cannot attach property over unpaid costs before those costs are formally taxed and certified.

What this practically means

#

Executive summary

#
The respondent, Leonard Githaiga Kamau t/a Gituamba Hotel, moved the Employment and Labour Relations Court at Nakuru by application dated 15th August 2019 seeking stay of execution and recall of warrants of attachment issued on 5th August 2019 to M/s Direct O Auctioneers. He argued the warrants were irregular and illegal because the claimant had neither filed a bill of costs for taxation nor obtained a certificate of costs, and no costs had been assessed. The claimant opposed, contending the application was an abuse of process: judgment had been entered on 11th October 2018 after the respondent failed to file a defence, a labour officer's report on underpayments was adopted on 20th February 2019, and warrants issued on that basis; the respondent's repeated absences should not deny her the fruits of judgment. The court found it uncontested that no bill of costs had been filed or assessed and no certificate issued. Relying on section 94 of the Civil Procedure Act and authorities cited by the claimant, the court held that execution before taxation requires leave of the High Court on good reasons, obtained formally and heard inter partes; that Order 21 Rule 7(4) of the Civil Procedure Rules, purporting to confer that power on a Deputy Registrar, is ultra vires the section; and that the respondent's non-attendance did not justify circumventing the statute. The application was allowed, the warrants were declared irregular, illegal and recalled, and the claimant was ordered to meet the respondent's costs.

Key legal issues

#
01

Lawfulness of warrants of attachment issued before taxation of costs

Holding

The warrants were unlawful as no bill of costs had been filed, no taxation done and no certificate of costs issued, and no leave for part execution was obtained.

Reasoning

Section 94 of the Civil Procedure Act allows execution before costs are ascertained only where the High Court orders it on good reasons. No bill of costs was presented for taxation, no certificate of costs issued, and the court was never moved for leave to execute as to the decretal sum. The Deputy Registrar could not waive the statutory requirement; court rules permitting such waiver are ultra vires the section.

p. 2
02

Effect of the respondent's repeated absence from court

Holding

The respondent's non-attendance did not justify circumventing section 94.

Reasoning

While the claimant attended court diligently and the respondent absented itself despite service, the court held that such absence is not a justifiable ground to bypass the statutory requirement of leave before executing a decree as to costs. Statutory procedure cannot be circumvented on the basis of a party's earlier default.

p. 2

Legal principles established

#
  • Execution of a decree before costs are ascertained by taxation requires leave of the High Court on good reasons; a Deputy Registrar has no power to waive the requirements of section 94 of the Civil Procedure Act.

Court orders

#
  1. 1.Application dated 15th August, 2019 allowed
  2. 2.Warrants of attachment issued to M/S Direct O Auctioneers on 5th August, 2019 found irregular, illegal and recalled
  3. 3.Claimant to meet the costs due to the respondent

Authorities

#

Legislation

  • Civil Procedure Actsection 94
  • Civil Procedure RulesOrder 21 Rule 7(4)

Cases cited (2)

  • Hosea Sitienei & another versus University of Eldoret & Others
    Petition No.3 & 4 of 2019
  • Bamburi Portland Cement Co. Ltd versus Hussein
    (1995) LLR 1870 (CAK)
Jurisdiction invoked
Employment and Labour Relations Court, executing its own decree; section 94 of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ruth Wairimu Muigai v Leonard Githaiga Kamau t/a Gituamba Hotel [2020] KEELRC 1596 (KLR)", Case Analysis (2020). Application dated 15th August, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1596/eng@2020-01-23

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