Wasike v Nzoia Sugar Company Limited; Diamond Trust Bank Kenya Limited & 2 others (Garnishee) (Employment and Labour Relations Cause 90 of 2017) [2023] KEELRC 596 (KLR)
The bottom line
#The Employment Court in Bungoma blocked an attempt to attach Nzoia Sugar Company's bank accounts because the judgment creditor had not first taxed its costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the garnishee application was premature for failure to tax costs before execution
Yes. Since the applicant pleaded costs and interest in the application and supporting affidavit, the waiver of costs raised only in submissions could not stand, and section 94 required strict compliance before execution.
The parties concurred that leave under section 94 of the Civil Procedure Act is required to execute a decree before costs are ascertained, unless costs are waived. The applicant sought costs and interest in prayers (b) and (c) and in the supporting affidavit. The alleged waiver appeared only in counsel's written submissions, which the court held are not pleadings and cannot be a source of evidence. With costs neither taxed nor clearly waived, the application was premature.
The evidentiary status of written submissions
Submissions are not pleadings and are not evidence; a judgment cannot be based on written submissions alone.
The court, guided by the Court of Appeal decisions cited in Robert Ngande Kathathi v Francis Kivuwa Kitonde, including Avenue Car Hire & Another v Slipha Wanjiru Muthegu, held that no judgment can be based on written submissions since submissions are not a mode of receiving evidence, and that producing evidence via submissions is impermissible.
Whether African Commuter Services Ltd v Kenya Civil Aviation Authority applied
Distinguished on its facts: unlike in that case, the alleged waiver of costs here was not on the court record at a hearing but appeared only in written submissions.
Both parties relied on African Commuter Services, where Mabeya J held that where costs are foregone the mischief of multiple executions under section 94 does not arise and execution may proceed for the principal sum. The court found the case inapplicable because in it the waiver was intimated in court to both the Court and the Respondent, whereas here the contradiction with the pleadings defeated the claimed waiver.
Legal principles established
#- Written submissions are not pleadings and no evidence can be produced by way of submissions; a waiver of costs contradicted by the party's own pleadings cannot be founded on submissions.
- A judgment creditor who claims costs and interest in the application and supporting affidavit cannot execute before taxation of costs unless the decree is executed by leave of the court or upon an express waiver of costs.
Court orders
#- 1.The garnishee application dated January 12, 2023 is dismissed
- 2.The application is dismissed with costs to the Respondent
- Jurisdiction invoked
- Sections 1A, 3A and 38(c) of the Civil Procedure Act (CAP 21 Laws of Kenya), Order 23 Rules 1(1), 2, 9 & 10 and Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Electricity Transmission Company v Mugah (Environment and Land Appeal E062 of 2025) [2026] KEELC 1212 (KLR)[2026] KEELC 1212 (KLR)26 Feb 2026
Cite this brief
#Cite this brief
Caselaw, "Wasike v Nzoia Sugar Company Limited; Diamond Trust Bank Kenya Limited & 2 others (Garnishee) (Employment and Labour Relations Cause 90 of 2017) [2023] KEELRC 596 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/596/eng@2023-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.