Malde v Mutsimoto Motors Company Ltd (Cause 19 of 2020) [2022] KEELRC 88 (KLR)
The bottom line
#Kenya's Employment Court stopped an auction because the winner executed the judgment before costs were taxed without first asking the court for permission.
What this practically means
#Executive summary
#Key legal issues
#Regularity of extraction and execution of the decree
The decree was extracted without complying with Order 21 Rule 8 and executed before costs were ascertained without leave under section 94 of the Civil Procedure Act, rendering execution irregular
The court reviewed Order 21 Rule 8 CPR and section 94 CPA. It held that since taxation of costs had not occurred, leave of the court was required before execution. The Claimant neither sought leave when judgment was pronounced nor applied subsequently, so the execution proceeded irregularly and in contravention of the law.
Stay of execution pending taxation of costs
Stay of execution granted as prayed because the Claimant executed irregularly
Having found the execution process irregular, the court exercised its discretion to stay execution of the decree pending taxation of costs, as sought in the application.
Auctioneers' charges
Auctioneers' costs shared equally because the applicant was still owing the Claimant at the time of attachment and the Claimant had acted irregularly
The court balanced the fault on both sides: the applicant had not paid the decretal sum when due, while the Claimant had executed without leave. It therefore apportioned the auctioneers' costs equally between the parties rather than loading them on one side.
Interest on the decretal sum
Interest to be determined in totality for proper execution and payment
The Respondent submitted that interest accrued from the date the monies fell due under clause 4 of the agreement, and that the applicant paid only the decretal sum without interest. The court left the question of interest to be determined in totality before execution is completed.
Legal principles established
#- Where taxation of costs has not been done, leave of the court must be sought before executing a decree
- Execution of a decree before costs are ascertained without leave is irregular
Court orders
#- 1.Stay of execution of the decree dated 16th December 2021 and issued on 14th January 2022 granted as prayed
- 2.Auctioneers' costs to be shared equally between the parties
- 3.Interest on the decretal sum to be determined in totality for proper execution and payment of any monies owing
- 4.Costs in the cause
- Jurisdiction invoked
- Section 3 of the Employment and Labour Relations Court Act; sections 1A, 1B and 3A of the Civil Procedure Act; Rules 17 and 32 of the Employment and Labour Relations Court Procedure Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Malde v Mutsimoto Motors Company Ltd (Cause 19 of 2020) [2022] KEELRC 88 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/88/eng@2022-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.