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ELRCDismissedAppeal No 26 of 2021· [2023] KEELRC 965 (KLR)

Mombasa Aviation Training Institute v Joseph (Appeal 26 of 2021) [2023] KEELRC 965 (KLR)

Employment and Labour Relations Court
17 April 2023
2,019 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 dismissed an attempt to halt execution of taxed legal costs because no formal objection to the taxation was ever filed.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Mombasa (Nzei J) determines the Appellant's Notice of Motion dated December 19, 2022 seeking stay of execution of a taxation order of November 30, 2022 (taxing the Respondent's Party and Party Bill of Costs), a declaration that the attachment and proclamation of the Appellant's assets under warrants issued to Sure Auctioneers on December 14, 2022 was unlawful and void, its lifting, an assessment of damages, and joint and several compensation by the Respondent, his Advocates and the Auctioneers. The background was that the Appellant's appeal had been dismissed with costs on June 9, 2022 for being statute-barred; the bill was then taxed, certified, and execution levied. The Respondent opposed, arguing no Rule 11 objection lay, that damages required a substantive suit, and that the application was vexatious. The Court held that with the appeal dismissed, taxation and execution of costs fall to the Deputy Registrar/Taxing Officer and the Court could only intervene upon a Rule 11 objection and Reference, neither of which was lodged. On the legality of execution, the Court held no decree is issuable from a Ruling - only an order - and no law bars execution on certified taxed costs before extraction and service of the order. The damages claim failed because damages can only be assessed in a primary suit before a trial court, and no wrongful attachment was demonstrated. The application was dismissed with costs and the interim stay of December 20, 2022 was vacated.

Key legal issues

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01

Whether stay of execution of taxed costs could issue absent a Rule 11 objection and Reference

Holding

No; the Court lacks a basis to stay execution of a taxation order where the party participated in taxation, filed no objection under Rule 11 of the Advocates Remuneration Rules and lodged no Reference

Reasoning

The Court had already dismissed the Appellant's appeal on June 9, 2022, ending its involvement; taxation, certification and execution of costs are the province of the Deputy Registrar/Taxing Officer. The only route back to the Court is a Rule 11 objection and Reference, which the Appellant never pursued, leaving no foundation for a stay order.

p. 3
02

Whether the attachment was unlawful for want of a decree, demand and draft decree for approval

Holding

No; only an order, not a decree, was issuable from the Ruling dismissing the appeal, and no law requires extraction and service of the costs order before executing certified taxed costs

Reasoning

Section 13 of the ELRC Act renders judgments and orders enforceable under Civil Procedure Act rules; Section 2 of the Act defines a decree as a formal expression of a judgment, and none was delivered here. The Appellant participated in taxation, the costs were certified, and the alleged illegality of execution was not demonstrated.

p. 4
03

Whether the Court could assess and award damages for alleged wrongful attachment in this application

Holding

No; damages must be assessed in a primary suit by a trial court, and no wrongful attachment was established

Reasoning

Wrongful attachment is actionable in tort or trespass, per Boston Wachira Kamangu v Taifa Society Ltd and Simiyu v Samino, both cited by the Appellant. But such claims require a substantive suit in a court of first instance; the appellate Court sitting on an application cannot take evidence and assess damages.

p. 5

Legal principles established

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  • Where an appeal has been dismissed, assessment, certification and execution of taxed costs fall within the province of the Deputy Registrar/Taxing Officer, and the Court can only intervene via a Rule 11 Reference
  • A decree is a formal expression of a judgment; no decree is issuable from a Ruling dismissing an appeal, so execution cannot fail merely for want of a decree
  • Damages for wrongful attachment are actionable in tort or trespass but only through a substantive suit in a court of first instance, not by application in a pending appellate matter

Court orders

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  1. 1.The Appellant/Applicant's Notice of Motion dated December 19, 2022 is dismissed with costs
  2. 2.The interim order of stay of execution dated December 20, 2022 is vacated

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 1B, 3, 3A, 63(e), 2
  • Employment and Labour Relations Court Act (No 11 of 2011 - 2016 Edition)Sections 12, 13, 18, 20
  • Constitution of Kenya 2010Articles 1, 2, 3, 10, 12, 19, 20, 21, 22, 23, 24, 25, 28, 38, 40, 47, 48, 50, 60, 64, 159, 162, 165, 169, 258, 259
  • Civil Procedure RulesOrder 21 Rule 7(1), Order 22 Rule 22, Order 42, Order 51 Rule 1
  • Advocates Remuneration RulesRule 11

Cases cited (4)

  • Boston Wachira Kamangu vs Taifa Society Ltd & Another
    [2016] eKLR
  • Aroni Sure & 8 Others vs Gesare Nyamaiko
    Civil Appeal No 94 of 1986
  • Simiyu v Samino
    [1985] eKLR
  • Morris vs Salbert
    [1880] 22 QBD 224
Jurisdiction invoked
Sections 12, 13, 18 and 20 of the Employment and Labour Relations Court Act; Sections 1, 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act; Order 22 Rule 22, Order 42 and Order 51 Rule 1 of the Civil Procedure Rules; Articles 1, 2, 3, 10, 12, 19, 20, 21, 22, 23, 24, 25, 28, 38, 40, 47, 48, 50, 60, 64, 159, 162, 165, 169, 258 and 259 of the Constitution

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, "Mombasa Aviation Training Institute v Joseph (Appeal 26 of 2021) [2023] KEELRC 965 (KLR)", Case Analysis (2023). Appeal No 26 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/965/eng@2023-04-17

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