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ELRCPartially AllowedPetition No 112 of 2019· [2022] KEELRC 1198 (KLR)

University of Kenya v Jomo Kenyatta University of Agriculture and Technology & 6 others (Petition 112 of 2019) [2022] KEELRC 1198 (KLR)

Employment and Labour Relations Court
4 July 2022
MOMAUREEN ONYANGO
3,850 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court stopped the seizure of university property because union dues had been paid into the wrong union accounts, and ordered reconciliation before any further collection.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Maureen Onyango, J) determined two notices of motion arising out of a judgment delivered on June 5, 2020, in which the petitioner union (UASU) was awarded union dues, agency fees and costs against the 4th and 7th respondents (universities). Following taxation, warrants of attachment were extracted and properties proclaimed in September 2021. The 4th respondent sought an injunction, payment of the balance decretal sum (Kshs.12,578,994.58) by monthly instalments, and joinder of Cash Gate Auctioneers; the 7th respondent sought stay and setting aside of warrants of attachment, contending it had paid the decretal sum and costs, with RTGS slips totalling Kshs.65,153,231.39. The petitioner opposed, insisting payments were never made to its gazetted National Office account as required by section 48(2) and section 50 of the Labour Relations Act and Legal Notice No. 38 of 2015, and that payments to Chapter accounts violated the law. The court found payments were indeed made, but into the UASU-TUK and UASU-KU Chapter accounts, and noted a 2017 NEC resolution contemplating Chapter accounts and 60:40 sharing. Holding that further remittance would subject the respondents to double payment, the court ordered the petitioner to reconcile its accounts with the two Chapter accounts, stayed execution pending confirmation of balances, allowed the 4th respondent to pay any balance by instalments, allocated auctioneer costs between the parties, and directed the petitioner to move the court once reconciliation was complete.

Key legal issues

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01

Whether the applications dated September 7, 2021 and September 8, 2021 had merit

Holding

The applications were merited; the court ordered reconciliation of accounts, stay of execution and payment by instalments

Reasoning

The court found that payments had been made by both respondents but into the Chapter accounts (UASU-TUK and UASU-KU) rather than the UASU National Office account. Since the payments were received by Chapter accounts of the petitioner, compelling fresh remittance would amount to double payment. Only reconciliation could establish the true outstanding balance, justifying a stay and instalment payment for the admitted balance.

p. 8
02

Whether payments made to the Chapter accounts complied with the judgment and the Labour Relations Act regime

Holding

The court found payments were indeed made, though not to the gazetted National Office account, and that a Special NEC resolution contemplated Chapter accounts and 60:40 sharing

Reasoning

The court examined the accounts filed by the respondents and confirmed payments were made to UASU-KU and UASU-TUK Chapter accounts. It took note of the 2017 NEC resolutions proposing gazettement of Chapter accounts and sharing of funds at 60:40. The petitioner's failure to reconcile accounts prior to execution was found to have caused the confusion, warranting a reconciliation order.

p. 7

Legal principles established

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  • Where a judgment debtor has remitted payments to a party's chapter accounts rather than the gazetted national account, the decree holder must reconcile accounts before further execution, as directing further remittance would subject the debtors to double payment
  • A court may allow payment of a decretal balance by instalments where the applicant shows sufficient cause and good faith

Court orders

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  1. 1.The petitioner is directed to reconcile its accounts with the two Chapter accounts being UASU – TUK Chapter and UASU – KU Chapter to ascertain the amounts paid so far and what is outstanding
  2. 2.There is a stay of execution pending confirmation of amounts that remain due and owing to the petitioner
  3. 3.The 4th respondent's request to pay the balance of the decretal sum by instalments is allowed
  4. 4.The auctioneer costs (drawn to scale) shall be borne by the 4th respondent in respect of the warrants of attachment against it
  5. 5.The petitioner shall bear costs in respect of the auctioneer charges for the 7th respondent
  6. 6.The petitioner to move the court for necessary orders once it has reconciled the accounts

Authorities

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Legislation

  • Labour Relations Actsection 48(2)
  • Labour Relations Act, 2007section 50; section 50(10)
  • Legal Notice No. 38 of 2015
  • Auctioneers ActRule 7
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Actsection 1B
  • Constitution of KenyaArticle 159(2)(d); Article 48

Cases cited (9)

  • National Industrial Credit Bank Limited v S. K. Ndegwa Auctioneer
    [2005] eKLR
  • Abdisalan Abdi Ali Ismail v Guhart Abdi Ali & 2 others
    [2019] eKLR
  • Freight Forwarders Ltd v Elsek & ELSEK (K) LTD
    [2012] eKLR
  • Republic v Chairman, Co-operatives Tribunal & 8 others ex-parte Management Committee Konza Ranching & Farming Co-operative Society Ltd
    [2014] eKLR
  • Stephen Somek Takwenyi & another v David Mbuthia Githare & 2 others
    Nairobi (Milimani) HCCC No. 363 of 2009
  • Giella v Cassman Brown & Co Ltd
    [1973] EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
  • Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 others
    [2016] eKLR
  • Kenya Power & Lighting Co. Limited v Sheriff Molana Habib
    [2018] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court in the pending petition and execution thereof

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, "University of Kenya v Jomo Kenyatta University of Agriculture and Technology & 6 others (Petition 112 of 2019) [2022] KEELRC 1198 (KLR)", Case Analysis (2022). Petition No 112 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1198/eng@2022-07-04

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