Twaweza Apparel [EPZ] Limited v Rehema Kahindi & another [2022] KEELRC 927 (KLR)
The bottom line
#Kenya's Employment Court stopped an auction of goods claimed by a non-party, but only after the decretal sum was secured in a joint account.
What this practically means
#Executive summary
#Key legal issues
#Whether an injunction pending appeal may issue to a non-party objector whose property has been proclaimed in execution
Yes. The Appellant has a valid and arguable appeal, has established a prima facie case on its claim of ownership via the Deed of Assignment, and would suffer irreparable loss if the proclaimed goods were auctioned, rendering the appeal nugatory.
The court found it not in dispute that the Appellant was not a party to the Lower Court suit and that the decree was against the judgment debtor alone. A Deed of Assignment dated 23/11/2020 evidencing transfer of the proclaimed property to the Appellant raised a bona fide question of ownership, satisfying the prima facie test. Under Rule 28(1)(a) of the ELRC Procedure Rules and Order 42 Rule 6(6) of the Civil Procedure Rules, the court could issue a temporary injunction pending appeal. Without it, sale of the goods would render the appeal nugatory. However, the 1st Respondent holds a valid decree and would also suffer if the judgment debtor were stripped of its assets, so the injunction was conditioned on deposit of the decretal sum to balance the hardship.
Jurisdiction to grant injunctive relief pending appeal from a subordinate court within the ELRC
The court has power under Section 12(3)(i) and (viii) of the ELRC Act and Rule 28(1)(a) of the ELRC (Procedure) Rules 2016 to issue injunctive and preservation orders, and Order 42 Rule 6(6) of the Civil Procedure Rules, saved by Rule 32, empowers the court in its appellate jurisdiction to grant a temporary injunction.
The court traced its power to the ELRC Act and its Procedure Rules, noting Rule 32 saves the application of the Civil Procedure Rules on execution of decrees. Order 42 Rule 6(6) provides that the High Court in the exercise of its appellate jurisdiction may grant a temporary injunction provided the procedure for instituting the appeal has been complied with. The Appellant filed its Memorandum of Appeal the day after the Lower Court Ruling, complying with the 30-day right of appeal granted by the Lower Court, and the Record of Appeal was yet to be filed but the proviso to Rule 8(4) allows it to be filed within a reasonable time.
Legal principles established
#- An appellate court may grant a temporary injunction pending appeal where the appeal is valid and not frivolous, guided by the principles in Giella v Cassman Brown and the injunction-pending-appeal principles in Patricia Njeri v National Museum of Kenya.
- In assessing a prima facie case for an interlocutory injunction, the court does not hold a mini trial; the applicant need only show a fair and bona fide question as to the existence of the right alleged.
Court orders
#- 1.An order of injunction issued pending hearing and determination of the appeal restraining the Respondents from attaching or otherwise interfering with the property of the Appellant/Applicant in execution of or in relation to the judgment delivered on 25/02/2021 in Mombasa CM ELR Case No. 160 of 2019.
- 2.The injunction was issued on condition that the Appellant/Applicant and the 2nd Respondent jointly and severally deposit the entire decretal sum of Ksh.632,693 into an interest earning bank account jointly held by Counsel for the three parties within twenty one (21) days of the Ruling, failing which the injunction order shall lapse.
- 3.The Appellant/Applicant to compile, file and serve a complete Record of Appeal in accordance with Rule 8(4) of the Employment & Labour Relations Court (Procedure) Rules 2016 within forty five (45) days from the date of the Ruling.
- 4.The appeal to be mentioned in Court on 16th March 2022 for fixing of a hearing date or for further directions.
- 5.Costs of the application to be in the appeal.
- On appeal from
- Mombasa Chief Magistrate's Court (ELR Case No. 160 of 2019)
- ELR Case No. 160 of 2019
- Jurisdiction invoked
- Sections 12(3)(i) and (viii) and 16 of the Employment and Labour Relations Court Act; Rules 17(3)(4)(5)(6)(8) and 28(1)(a)(b) & (g) of the Employment and Labour Relations Court (Procedure) Rules 2016; Article 159(2)(a)(b) and (d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Twaweza Apparel [EPZ] Limited v Rehema Kahindi & another [2022] KEELRC 927 (KLR)", Case Analysis (2022). Notice of Motion dated 27th August 2021 in appeal from Mombasa Chief Magistrate's Court ELR Case No. 160 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/927/eng@2022-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.