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ELRCPartially AllowedNot stated in the judgment as provided· [2021] KEELRC 42 (KLR)

Stephen Mwallyo Mbondo v County Government of Kilifi [2021] KEELRC 42 (KLR)

Employment and Labour Relations Court
20 December 2021
4,573 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed you cannot seize government property to enforce a judgment, but an advocate must be heard before being made to pay costs personally.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court (B. O. M. Manani J) against a trial court ruling of 13th August 2020 which lifted an attachment levied in execution of an ex-parte judgment, set the judgment aside, and granted the Respondent leave to defend the suit. The appeal raised five issues distilled from ten grounds. First, the court affirmed that execution by attachment against the Respondent, a government body, was unlawful: section 21 of the Government Proceedings Act prescribes the exclusive procedure for executing decrees against government and county governments and forbids attachment of their assets. Article 159 of the Constitution does not licence disregard of clear statutory procedure. Second, the magistrate did not act capriciously in setting aside the ex-parte judgment: she considered the triable issue raised by the disputed Ksh. 508,000 claim, the absence of irremediable prejudice, and the limited delay. Third, no bias by the trial court was established. Fourth, however, the trial court erred in condemning the Appellant's advocates to pay the auctioneer's costs personally without first hearing them; that order was set aside, with the auctioneer left free to seek a determination on who bears his costs, and the Respondent confirmed not liable for those costs. Both parties having partially succeeded, each party was ordered to bear their own costs.

Key legal issues

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01

Lawfulness of execution by attachment against a government body

Holding

The trial court was correct: section 21 of the Government Proceedings Act forbids enforcement of decrees against government and county governments by attachment of assets, and the procedure must be strictly followed

Reasoning

The Respondent is a government body, so attachment of its assets to satisfy a decree is impermissible. Section 21 GPA provides the sole mode of execution against government and applies to county governments with modifications. The rationale is to shield agencies from being incapacitated by attachments, since only budgeted funds can lawfully be paid. Article 159 does not permit disregarding clear statutory procedure, especially where the opponent would be prejudiced.

p. 2
02

Whether the setting aside of the ex-parte judgment was a capricious exercise of discretion

Holding

No - the magistrate considered the presence of a triable issue (the disputed Ksh. 508,000 claim), absence of prejudice (curable by costs), and limited delay; the discretion was properly exercised

Reasoning

The tests are whether there is a defence on the merits, whether there would be prejudice, and whether there is an explanation for delay. The disputed claim of Ksh. 508,000 raised a triable issue; a triable issue need not ultimately succeed. Prejudice could be cured by costs, which were awarded, and the suit was barely a year old. The appellate court will not disturb such a discretionary decision absent misdirection.

p. 4
03

Whether the trial court was biased against the Appellant and his advocates

Holding

No bias was established; the court considered the Appellant's evidence on the proclamation and had power under section 27 of the Civil Procedure Act to give directions on costs, including auctioneers' costs, without the issue being pleaded

Reasoning

The court had dismissed the Respondent's claim of non-compliance with the Auctioneers Rules based on the Appellant's own evidence, showing consideration of his case. Section 27 of the Civil Procedure Act vests wide discretion over costs incidental to a suit, including auctioneers' costs, and section 7 of the Auctioneers Rules does not cover a case where the judgment has been set aside and no debtor/creditor relationship exists.

p. 5
04

Whether the advocates could be condemned to pay the auctioneers' costs personally without a hearing

Holding

The trial court erred: before making a wasted costs order the advocate must be heard; the order condemning the advocates to pay the auctioneer's costs was set aside

Reasoning

Although the court had power to deal with costs summarily without pleading, natural justice required that counsel be heard first before a personal costs order. Counsel might have shown that it was the court, not the advocate, that granted the irregular warrant. Auctioneers are officers and agents of the court, so the trial court's assertion that the advocates appointed them was inaccurate. The auctioneer may apply for determination of who bears his costs; the Respondent is not liable as victim of an irregular attachment.

p. 5

Legal principles established

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  • Decrees against government and county governments cannot be enforced by attachment of assets; the procedure in section 21 of the Government Proceedings Act must be strictly followed
  • Article 159 of the Constitution is not a licence to disregard clear statutory procedure
  • An appellate court will not interfere with a trial court's exercise of discretion unless it misdirected itself or was clearly wrong
  • An advocate is entitled to be heard before being condemned to pay costs personally (wasted costs)
  • Auctioneers executing decrees are agents of the court, not of the decree holder's advocates

Court orders

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  1. 1.The appeal succeeds only in part: the execution against the Respondent was unlawful and the trial court's lifting of the attachment and setting aside of the ex-parte judgment are affirmed
  2. 2.The order that the Appellant's advocate pays the costs of the auctioneer is set aside; the auctioneer may move the court for a determination on whether his costs are payable and by whom
  3. 3.The trial court's finding that the Respondent is not liable to settle the auctioneer's costs is upheld
  4. 4.Each party to bear his/its own costs of the appeal
On appeal from
The trial court (ELRC subordinate registry, magistrate's court)
Not stated
Jurisdiction invoked
First appeal from the trial court's ruling of 13th August 2020 (appeal jurisdiction not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Stephen Mwallyo Mbondo v County Government of Kilifi [2021] KEELRC 42 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/42/eng@2021-12-20

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