Kenya Plantation & Allied Workers Union v Unilever Tea (K) Limited (Cause 10 of 2014) [2022] KEELRC 1381 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Functus officio and jurisdiction
The court has jurisdiction to entertain an application to set aside irregular execution and stay its own decree notwithstanding a pending appeal
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.
Irregular execution under Order 22 rule 18
The warrants of attachment, proclamation and notification of sale were unlawful for breach of Order 22 rule 18
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.
Stay pending appeal under Order 42 rule 6(2)
Stay granted: substantial loss shown, no unreasonable delay, and security already deposited
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.
Legal principles established
#- 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
#- 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.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.The Kshs 1,000,000 deposited in court shall remain there as security pending the hearing and determination of the said appeal
- 4.Costs of the application awarded to the applicant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.