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ELRCDismissedNot stated in the judgment· [2023] KEELRC 593 (KLR)

Malde v Mutsimoto Motor Company Ltd (Cause 19 of 2020) [2023] KEELRC 593 (KLR)

Employment and Labour Relations Court
14 March 2023
1,920 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 confirmed that an annulled, stayed execution does not strip a decree holder of the right to tax costs.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court by Hellen Wasilwa, J, delivered virtually on March 14, 2023, determines a notice of preliminary objection dated September 30, 2022 raised by the Respondent against the Claimant's party and party Bill of costs. The Respondent argued that the Bill was fatally defective under Section 94 of the Civil Procedure Act and Rule 32(2) of the ELRC Rules; that the Claimant extracted a decree and executed it without leave of the court, the execution having been declared irregular in the ruling of June 14, 2022; and that the Claimant had thereby waived her right to costs. Relying on Mukhisa Biscuit, Bamburi Portland Cement, Vincent Edward Njoroge and Kartar Singh Dhupar, the Respondent submitted that execution before taxation without leave amounts to waiver of costs. The Claimant countered that the objection was raised late, in bad faith and as a decoy to delay payment; that the issues were res judicata having been raised in the application of February 1, 2022; and that the execution relied on had been declared irregular and void, with payment of the decretal sum made during the stay. The court held that the rulings of February 1, 2022 and June 14, 2022 effectively stayed execution, so no execution had proceeded and the claimant reverted to her pre-execution position. She remained free to tax her bill before the Deputy Registrar and execute thereafter. The preliminary objection was dismissed with costs to the Respondent (Claimant).

Key legal issues

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01

Whether execution of a decree before taxation of costs, where execution was stayed as irregular, operates as a waiver of the decree holder's right to costs under Section 94 of the Civil Procedure Act

Holding

It does not; since the execution was stayed and declared irregular, no execution proceeded, the decree holder reverted to her prior position, and she remained free to tax her bill of costs before the Deputy Registrar

Reasoning

The court recollected that by its application of February 1, 2022 the Respondent obtained a stay of execution on the ground that execution was irregular, and the ruling of June 14, 2022 directed that interest also be determined before proper execution. The effect of the stay was that no execution proceeded and the claimant reverted to the position before execution. Therefore the waiver argument, which would have held true had execution proceeded, failed. The claimant could tax her bill and execute thereafter for monies owing.

p. 4
02

Whether the preliminary objection concerned pure points of law as required by the Mukisa Biscuit principle

Holding

The court did not need to reach this; it dismissed the objection on the merits, holding it lacked merit because no execution had proceeded since the stay

Reasoning

The Applicant/Respondent relied on Mukhisa Biscuit Manufacturing Co Ltd v West End Distributors to frame the objection as a pure point of law on Section 94 of the Civil Procedure Act and waiver of costs. The court examined the record, noted the earlier rulings staying execution as irregular, and concluded that since no execution had in fact proceeded, the foundational premise of the objection - that the claimant executed before taxation and thereby waived costs - fell away.

p. 4

Legal principles established

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  • Where a court has stayed execution as irregular, the effect is that no execution proceeded and the decree holder reverts to the position before execution was initiated, leaving the decree holder free to tax costs and commence fresh execution

Court orders

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  1. 1.The preliminary objection dated September 30, 2022 is dismissed for lack of merit
  2. 2.Costs of the preliminary objection awarded to the Respondents/Claimant

Authorities

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Legislation

  • Civil Procedure ActSection 94
  • Employment and Labour Relations Court (Procedure) RulesRules 31, 32(2)
  • Civil Procedure RulesOrder 21 Rule 8; Order 21 r 7(4)

Cases cited (8)

  • Mukhisa Biscuit Manufacturing Co Ltd V West End Distributors
    (1969) E A 696
  • Bamburi Portland Cement Company Limited V Imranali Chandbhai Abdulhussein
    [1996] eKLR
  • Vincent Edward Njoroge V Kenol Kobil Limited
    [2018] eKLR
  • Bullion Bank Limited vs James Kinyanjui and Another
    (2006) eKLR
  • Quality Centre Limited vs USL (T) Limited (formerly known as Uchumi Supermarkets (Tanzania) Limited and Another
    (2017) eKLR
  • African Committee Services Limited vs Kenya Civil Aviation Authority and 2 Others
    (2014) eKLR
  • Kartar Singh Dhupar & Co Ltd V Lianard Holdings Limited
    [2017] eKLR
  • African Commuter Services Ltd V Kenya Civil Aviation Authority & 2 others
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules - taxation of party and party Bill of Costs before the Deputy Registrar

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, "Malde v Mutsimoto Motor Company Ltd (Cause 19 of 2020) [2023] KEELRC 593 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/593/eng@2023-03-14

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