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ELRCPartially AllowedNot stated in the judgment (main suit is an ELRC petition, judgment delivered December 10, 2021 by Onyango J)· [2023] KEELRC 302 (KLR)

Langi v KUPPET & 3 others; M/S High Class Auctioneers (Interested Party) (Cause 521 of 2019) [2023] KEELRC 302 (KLR)

Employment and Labour Relations Court
10 February 2023
1,937 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The ELRC cancelled KUPPET's auction of Teachers Service Commission property because the union skipped mandatory steps needed to enforce judgments against government bodies in Kenya.

What this practically means

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Executive summary

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The 3rd respondent, the Teachers Service Commission, filed a notice of motion dated December 21, 2022 seeking a declaration that warrants of attachment and a notice of proclamation of movable property issued by M/s High Class Auctioneers on December 19, 2022 in execution of the judgment of December 10, 2021 were illegal and void, and a permanent injunction restraining the claimant union from executing the judgment against it. The applicant argued that under paragraph 47 of the judgment the deducted union dues were recoverable from the 2nd respondent, that the refund order in paragraph 48(v) was not joint and several, and that execution against it violated section 21 of the Government Proceedings Act. The claimant opposed, relying on a consent order of July 15, 2019 in ELRC Petition 97 of 2018 and consent orders of December 10, 2021 fixing the decretal sum at Kshs 58,317,168.30. The court held that the refund order was directed at each respondent separately and required proof of what each deducted and remitted; no material showed monies deducted and remitted by the applicant, so the claimant failed to justify the execution. The court further held that the applicant, as a constitutional commission, is government in the wide sense of article 2(1) of the Constitution, so section 21 of the Government Proceedings Act and order 29 rule 3 of the Civil Procedure Rules applied and no certificate of order had been obtained or served, rendering the execution unlawful. The application was partially allowed: the execution was declared illegal, irregular, null and void and set aside, but the permanent injunction was refused pending establishment of apportionment. Each party was ordered to bear its own costs.

Key legal issues

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01

Liability of the 3rd respondent for the decretal sum under the judgment and consent orders

Holding

The claimant failed to justify the ongoing execution against the 3rd respondent because there was no material showing that the 3rd respondent deducted and remitted any union dues after the claimant and those he representated ceased to be its employees

Reasoning

Order 48(v) of the judgment of December 10, 2021, as repeated in consent order (5), directed the 2nd and 3rd respondents each to refund monies they deducted and remitted after the claimants ceased to be employees of the 3rd respondent. The order was not joint and several but directed at each separately. Paragraph 47 of the judgment attributed the deductions to the 2nd respondent. No material showed monies deducted and remitted by the 3rd respondent over the material period, so execution against it was unjustified.

p. 4
02

Apportionment of liability between the 2nd and 3rd respondents

Holding

The consent orders suggest the need to establish apportionment of liability before any execution against the 3rd respondent; the permanent injunction was refused because such apportionment remained to be established

Reasoning

The applicant was a party to consent order No 6 fixing the decretal sum at Kshs 58,317,168.30, but it remained to be established whether any portion of that sum was payable by the applicant under order 48(v). The consent order (5) suggested the need for apportionment, if any. Execution was set aside for want of established apportionment, but the court declined a permanent injunction since apportionment could still be established.

p. 4
03

Whether the Government Proceedings Act and Civil Procedure Rules procedure for execution against government applies to the Teachers Service Commission as a constitutional commission

Holding

State organs such as the applicant constitute government in the wider constitutional sense; section 21 of the Government Proceedings Act and order 29 rule 3 of the Civil Procedure Rules applied, and no certificate of order was shown to have been applied for, issued and served before the execution, making the execution unlawful

Reasoning

Neither the Government Proceedings Act nor article 260 of the Constitution defines 'Government'. Article 2(1) binds all state organs, and article 260 defines a state organ to include a commission established under the Constitution. Accordingly the applicant is a creature constituting government. Section 3 of the Interpretation and General Provisions Act broadly defines Government as Government of Kenya. The certificate of order requirement applied and had not been satisfied, so the execution as initiated was unlawful.

p. 4

Legal principles established

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  • In the wider constitutional sense under article 2(1) of the Constitution, Government encompasses the three arms of government as well as institutions and agencies established by or under the Constitution, including constitutional commissions such as the Teachers Service Commission
  • Section 21 of the Government Proceedings Act and order 29 rule 3 of the Civil Procedure Rules apply to execution against a constitutional commission; a party wishing to realise the fruits of a judgment against the government must first secure a certificate of costs and a certificate of order against the government
  • An order that respondents each refund monies deducted, not being joint and several, requires apportionment showing which respondent deducted and remitted any monies before execution can issue against that respondent

Court orders

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  1. 1.Declaration that the mode of execution of decree, in particular the warrants of attachment and notice of proclamation of moveable property issued by M/s High Class Auctioneers dated December 19, 2022, is illegal and irregular hence null and void, and the same is set aside
  2. 2.Each party to bear own costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 50(1), 159, 2(1), 260
  • Civil Procedure Act (cap 21)Sections 3A, 63, 14
  • Civil Procedure RulesOrder 10 rule 11, Order 12 rule 7, Order 51 rule 1, Order 29 rules 2 and 3
  • Government Proceedings Act (cap 40)Section 21
  • Teachers Service Commission Act (No 20 of 2012)Section 21
  • Interpretation and General Provisions ActSection 3
  • Employment ActSection 19(1)

Cases cited (2)

  • Jamleck Waweru Karanja v County Government of Nakuru
    [2020] eKLR
  • Republic v Principal Magistrate's Court at Mavoko & Another ex parte Joseph Ole Lenku, Governor Kajiado County & Another
    [2018] eKLR
Jurisdiction invoked
Inherent powers of the Employment and Labour Relations Court invoked through sections 3A and 63 of the Civil Procedure Act and articles 50(1) and 159 of the Constitution; original jurisdiction over the petition in which the application was filed

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, "Langi v KUPPET & 3 others; M/S High Class Auctioneers (Interested Party) (Cause 521 of 2019) [2023] KEELRC 302 (KLR)", Case Analysis (2023). Not stated in the judgment (main suit is an ELRC petition, judgment delivered December 10, 2021 by Onyango J). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/302/eng@2023-02-10

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