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ELRCPartially AllowedNot stated in the excerpt· [2023] KEELRC 1538 (KLR)

Kenya Engineering Workers Union v Farm Engineering Industries Ltd & another (Cause 47 of 2019) [2023] KEELRC 1538 (KLR)

Employment and Labour Relations Court
21 June 2023
RSRadido Stephen
582 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 invalidated an auctioneer's attachment of property because only a union's General Secretary could lawfully instruct execution, not a branch official.

What this practically means

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Executive summary

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By a Motion dated 9 March 2023, the Respondent sought, among other prayers, stay of execution of a judgment delivered on 29 September 2022 by Radido J and the resultant decree, on the ground that although it had issued post-dated cheques to the Grievant in settlement of the decree around 6 March 2023, auctioneers had moved to execute without lawful instructions. The General Secretary of the Claimant Union swore a replying affidavit stating the Union was not privy to the cheques, had not instructed the auctioneer, and that negotiations were ongoing. The Claimant Union supported the Motion. The auctioneer countered that it had been instructed by the Union's Area Secretary, Kisumu branch, and the Grievant, and that the decree had not been settled; supporting affidavits were sworn by the Area Secretary and the Grievant. After brief oral submissions on 8 June 2023, the Court made six findings. It held that the General Secretary, as the authorised person under section 22 of the Employment and Labour Relations Court Act and section 73(3) of the Labour Relations Act, had not instructed the auctioneer; that the Area Secretary lacked written or implicit authority to act for the Union; and that the auctioneer failed to prove lawful or written instructions. The Court found the auctioneer's conduct reckless and unprofessional, declared the execution unlawful and defective, and held that the application for execution filed on 20 February 2023 was void. The Court found merit in the Motion and invalidated the warrants of attachment and sale, ordered the auctioneer to refund any charges or fees paid by the Respondent within 21 days, and directed the auctioneer to meet the costs of the Motion.

Key legal issues

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01

Authority to instruct execution of a decree against post-dated cheques issued by the judgment debtor

Holding

The auctioneer acted without lawful or written instructions from the Union's authorised officer; the Area Secretary was not authorised and the execution was unlawful, defective and void.

Reasoning

The Court held that authority to execute a decree rests with the union's General Secretary under section 22 of the ELRC Act and section 73(3) of the Labour Relations Act. The Area Secretary exhibited no written or implicit instructions to act for the Union. Since the auctioneer proved no lawful or written instructions from the authorised officer, the execution was unlawful and defective and the application for execution filed on 20 February 2023 was void. The Court deprecated the auctioneer's conduct as reckless and unprofessional.

p. 2
02

Whether the Respondent's Motion for stay of execution had merit

Holding

The Motion was merited and the Court invalidated the warrants of attachment and sale, ordered refund of charges and awarded costs against the auctioneer.

Reasoning

Because the execution itself was found unlawful and void for want of lawful instructions, the Court found merit in the Motion. Rather than a bare stay, it went further to invalidate the warrants, direct the auctioneer to refund any charges or fees paid by the Respondent within 21 days, and order the auctioneer to bear the costs of the Motion.

p. 2

Legal principles established

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  • The General Secretary of a union, as the authorised person under section 22 of the Employment and Labour Relations Court Act and section 73(3) of the Labour Relations Act, is the proper officer to authorise execution of a decree in favour of the union
  • An auctioneer must act on lawful or written instructions; execution undertaken without such instructions is unlawful and defective and any warrants issued are void

Court orders

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  1. 1.The warrants of attachment and sale be and are hereby invalidated
  2. 2.The auctioneer to refund any charges/fees paid to it by the Respondent within 21 days
  3. 3.The auctioneer to meet the costs of the Motion
Jurisdiction invoked
Employment and Labour Relations Court Act, section 22; Labour Relations Act, section 73(3) (referenced in the judgment); original jurisdiction of the ELRC within an existing Cause

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, "Kenya Engineering Workers Union v Farm Engineering Industries Ltd & another (Cause 47 of 2019) [2023] KEELRC 1538 (KLR)", Case Analysis (2023). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1538/eng@2023-06-21

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