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ELRCAllowedCause No 10 of 2014· [2022] KEELRC 1381 (KLR)

Kenya Plantation & Allied Workers Union v Unilever Tea (K) Limited (Cause 10 of 2014) [2022] KEELRC 1381 (KLR)

Employment and Labour Relations Court
19 May 2022
1,946 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 set aside an employer's property attachment because the judgment holder skipped required execution steps, and paused enforcement while the appeal is decided.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nakuru (Onesmus N Makau J) on a notice of motion dated October 22, 2021 by the judgment debtor, a company acting through its Legal Manager Winnie Ochieng. A judgment of May 17, 2016 had reinstated the claimant and awarded him twelve months' salary for unlawful termination, with costs. Five years later, in October 2021 and while the company's appeal (Nakuru Civil Appeal No. E015 of 2020) was pending, the claimant obtained warrants of attachment, proclaimed the applicant's goods, and issued a notification of sale for recovery of Kshs 1,024,029. The applicant sought discharge of the warrants and stay of execution, contending breach of Order 22 rule 18 of the Civil Procedure Rules, which requires notice to show cause where execution is sought more than a year after the decree. The claimant opposed, arguing the court was functus officio and lacked jurisdiction. The court framed three issues and held that it retained jurisdiction to set aside irregular execution and stay its own decree pending appeal; that the execution was unlawful because no notice to show cause was served and no reasons for dispensing with it were recorded, and no bill of costs had been taxed so execution without leave was irregular; and that stay was warranted since substantial loss was unrebutted, there was no unreasonable delay, and Kshs 1,000,000 already deposited would serve as security. The application was allowed with costs to the applicant.

Key legal issues

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01

Functus officio and jurisdiction

Holding

The court has jurisdiction to entertain an application to set aside irregular execution and stay its own decree notwithstanding a pending appeal

Reasoning

The court held it was not being asked to reconsider its decision on merits or intervene in matters before the Court of Appeal; setting aside unlawful execution and staying the decree pending appeal are matters the trial court may determine even where an appeal is pending, unless a party has approached the Court of Appeal for the same reliefs.

p. 3
02

Irregular execution under Order 22 rule 18

Holding

The warrants of attachment, proclamation and notification of sale were unlawful for breach of Order 22 rule 18

Reasoning

The decree was issued on May 23, 2016 but execution was not sought until July 2021, beyond one year. No notice to show cause was served and no reasons were recorded dispensing with it under rule 18(2). The court also found the claimant had not filed a bill of costs, so execution without leave was irregular. The court applied Metro Petroleum Ltd v Turbo Highway Eldoret Ltd.

p. 3
03

Stay pending appeal under Order 42 rule 6(2)

Holding

Stay granted: substantial loss shown, no unreasonable delay, and security already deposited

Reasoning

Costs had not been taxed, so execution was not yet a reality and delay could not be attributed to the applicant. The claimant filed no replying affidavit to rebut allegations that he had left employment and his assets were unknown, so capacity to refund the decretal sum was not demonstrated. Kshs 1,000,000 already deposited in court was retained as security for performance of the decree.

p. 4

Legal principles established

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  • Where an application for execution is made more than one year from the date of the decree, a notice to show cause must be issued and served unless the court records reasons for dispensing with it; execution without such notice is irregular
  • Where costs awarded in a judgment have not been taxed, no party can execute the decree without leave of the court
  • A trial court retains jurisdiction to set aside irregular execution and to stay its own judgment pending appeal even where an appeal is pending before the Court of Appeal

Court orders

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  1. 1.The warrants of attachment issued on October 12, 2021 and the consequent notice of proclamation and notification of sale of property are discharged, lifted and/or set aside
  2. 2.Pending the hearing and determination of Nakuru Civil Appeal No. E015 of 2020, the judgment delivered on May 17, 2016 and decree issued on May 23, 2016 are stayed
  3. 3.The Kshs 1,000,000 deposited in court shall remain there as security pending the hearing and determination of the said appeal
  4. 4.Costs of the application awarded to the applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 rule 18
  • Civil Procedure RulesOrder 22 rule 18(2)
  • Civil Procedure RulesOrder 42 rule 6(2)
  • Industrial Court ActSection 16
  • Court of Appeal RulesRule 4 and Rule 5(2)
  • ELRC Procedure RulesRule 28(3)

Cases cited (1)

  • Metro Petroleum Ltd v Turbo Highway Eldoret Ltd
    (2006) eKLR
Jurisdiction invoked
Inherent and execution jurisdiction of the ELRC under the Civil Procedure Rules (Order 22 rule 18 and Order 42 rule 6), notwithstanding a pending appeal to the Court of Appeal

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, "Kenya Plantation & Allied Workers Union v Unilever Tea (K) Limited (Cause 10 of 2014) [2022] KEELRC 1381 (KLR)", Case Analysis (2022). Cause No 10 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1381/eng@2022-05-19

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