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ELRCPartially AllowedNot stated in the extract (ELRC cause; ruling on application dated 1st November 2021)· [2022] KEELRC 349 (KLR)

Agnes Muthoni & 34 others v Kenya Medical Research Institute (KEMRI); Union of National Research and Allied Institutes Staff of Kenya (UNRISK)(Interested Party) [2022] KEELRC 349 (KLR)

Employment and Labour Relations Court
10 March 2022
MMM. Mbaru
2,248 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling by M. Mbaru, J of the Employment and Labour Relations Court at Nairobi, delivered on 10th March 2022, dealt with Order (6) of the claimants' Notice of Motion dated 1st November 2021, by which they sought leave to execute for unpaid basic salaries from 15th June 2015 to 18th October 2021 and future gross salaries. By a prior ruling of 10th December 2021 the court had found the respondent's Acting Director General guilty of contempt of orders issued on 14th October 2021, with sentencing in abeyance. The claimants argued the December 2021 ruling allowed execution for the sums due, tabulated by the respondent at Kshs.158,610,708 less Kshs.843,604.80 already paid. The Interested Party supported them. The respondent countered that the application was spent, that execution required compliance with Order 22 Rules 6, 7 and 13 of the Civil Procedure Rules via an extracted decree containing the sums due, and that variances related only to statutory deductions. The court held that without a decree or order quantifying the sums, execution would amount to nothing, but criticised the respondent's over eleven years of non-compliance, partial payment, and contradictory budgetary figures. It directed the respondent to tabulate back pay for 16th July 2015 to 16th January 2022, including basic and gross pay, within 7 days, failing which the claimants' own tabulation would be adopted as the judgment sum and they would be at liberty to execute. Mention was set for 24th March 2022. No costs order was made.

Key legal issues

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01

Whether execution could issue without an extracted decree

Holding

No. Execution procedures under Order 22 Rules 6 and 7 presuppose a decree setting out the amounts due; without one, execution would be futile.

Reasoning

The court accepted the respondent's submission that Order 22 rule 6 requires a decree-holder to apply to the court which passed the decree, and Order 22 rule 7 sets out elaborate particulars for an execution application, including the amount due. Since the judgment contained no order quantifying the amounts due, the proper course was first to ascertain the back pay through a directed tabulation, after which a decree would issue and execution could follow.

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02

Whether the respondent's conduct justified the orders sought

Holding

Yes in part. The respondent had knowledge of the judgment since May 2010, paid only Kshs. 843,604.80, and gave contradictory figures on budgetary provision, so the court directed tabulation with consequences for non-compliance.

Reasoning

The court found the respondent had failed, refused and neglected to pay back pay in full despite awareness of the judgment since 2010, had given contradictory budgetary figures, and had only partially complied. Contempt sentencing of the Acting Director General remained in abeyance. To prevent frustration of the judgment, the court set a 7-day tabulation timeline with self-executing consequences on default.

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Legal principles established

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  • Execution proceedings cannot proceed without a decree or order of the court setting out the amounts subject to enforcement
  • Where the judgment-debtor fails to tabulate the decretal dues within the period directed, the decree-holder's own tabulation may be adopted by the court as the judgment sum

Court orders

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  1. 1.The tabulation of back pay due to the claimants shall consist of dues owing and unpaid from 16th July, 2015 to 16th January, 2022
  2. 2.The dues owing and unpaid shall include the basic pay and total gross pay
  3. 3.The respondent to address the tabulation within the next 7 days
  4. 4.Upon lapse or failure to comply, the claimants shall apply their own rates and figures in tabulating back pay due, which shall be adopted by the court as the judgment sum
  5. 5.Once the tabulation takes effect, the claimants shall be at liberty to proceed and execute the judgment award
  6. 6.Mention on 24th March 2022 for confirmation and further directions
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules; application on record in the underlying employment cause (Article 162(2) jurisdiction implied by forum, not expressly cited)

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, "Agnes Muthoni & 34 others v Kenya Medical Research Institute (KEMRI); Union of National Research and Allied Institutes Staff of Kenya (UNRISK)(Interested Party) [2022] KEELRC 349 (KLR)", Case Analysis (2022). Not stated in the extract (ELRC cause; ruling on application dated 1st November 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/349/eng@2022-03-10

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