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ELRCDismissedNotice of Motion dated 16th February, 2021· [2021] KEELRC 1935 (KLR)

Constatine Muuna Mwithimbu & 8 others v Ruiri Farmers Co-op Society Limited [2021] KEELRC 1935 (KLR)

Employment and Labour Relations Court
23 March 2021
DMD. K. Njagi Marete
989 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court blocked an auction of a Kshs.100 million property, preferring the debtor's plan to sub-divide and sell part of it to repay the debt.

What this practically means

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Executive summary

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The Claimants/Applicants moved the court by Notice of Motion dated 16th February, 2021 seeking approval of the conditions and terms of sale of land parcel Kiirua/Ruiri/5455 and authorization of M/S Jocet Auctioneers to conduct the sale, in satisfaction of an acknowledged debt of Kshs.5,205,387 owed by the Respondent. The motion was filed without a supporting affidavit, which was only filed and served later, on 24th February, 2021, on the court's prodding. The Respondent, through its chairman Henry K. Mathenge, acknowledged the debt, attributed her default to financial hardship in coffee processing, and averred that she had obtained authority from the County Government of Meru on 3rd September 2019 to sub-divide the property, valued at over Kshs.100,000,000, and sell portions to settle her liabilities within three months, warning that a wholesale sale would occasion loss of a public asset. The Claimants faulted the Respondent's sincerity and cited a related cause, Meru ELRC No.50 of 2018, in which attachment orders had issued on 21st January, 2021, plus earlier attachment dating to 2016 and prohibitions on the property. The court agreed the application was defective for want of a supporting affidavit but declined to dwell on the defect in line with Article 159(2)(d) of the Constitution, preferring substance over form. On the merits, the court found the respondent's case preferable, noting the unsupported allegation of mischief against the respondent's chairman, and disallowed the application, with each party bearing their own costs. Judgment delivered at Nyeri on 23rd March, 2021 by D. K. Njagi Marete, Judge.

Key legal issues

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01

Competence of an application lacking a supporting affidavit at filing

Holding

The application was defective for want of a supporting affidavit, but the court declined to act on that defect in line with the dictates of Article 159(2)(d) of the Constitution

Reasoning

The motion was filed naked, with a supporting affidavit coming in later and only after the court's prodding. The court acknowledged the defect but, invoking the constitutional command against undue technicalities, chose to determine the substance of the dispute rather than strike out the application on form.

p. 2
02

Whether the court should approve sale of the respondent's property in execution

Holding

The application was disallowed because the respondent acknowledged the debt and had a viable plan to sub-divide and sell part of the property to settle it

Reasoning

The respondent admitted indebtedness and obtained authority from the County Government of Meru to sub-divide Kiirua/Ruiri/5455, undertaking to complete the process in three months. Auctioning the whole property, valued in excess of Kshs.100,000,000, would occasion unnecessary loss of a public asset. The claimants' allegation of mischief by the respondent's chairman was unsupported by any evidence.

p. 2

Legal principles established

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  • A motion filed without a supporting affidavit is defective, but courts should disregard such technicality in favour of substantive justice under Article 159(2)(d)

Court orders

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  1. 1.The application by Notice of Motion dated 16th February, 2021 was disallowed
  2. 2.Each party to bear their own costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
Jurisdiction invoked
Employment and Labour Relations Court; Article 159(2)(d) of the Constitution of Kenya, 2010 invoked on undue regard to technicalities

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, "Constatine Muuna Mwithimbu & 8 others v Ruiri Farmers Co-op Society Limited [2021] KEELRC 1935 (KLR)", Case Analysis (2021). Notice of Motion dated 16th February, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1935/eng@2021-03-23

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