Langi v KUPPET & 3 others; M/S High Class Auctioneers (Interested Party) (Cause 521 of 2019) [2023] KEELRC 302 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Liability of the 3rd respondent for the decretal sum under the judgment and consent orders
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
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.
Apportionment of liability between the 2nd and 3rd respondents
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
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.
Whether the Government Proceedings Act and Civil Procedure Rules procedure for execution against government applies to the Teachers Service Commission as a constitutional commission
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
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.
Legal principles established
#- 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
#- 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.Each party to bear own costs of the application
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.