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ELRCPartially AllowedCause concerning garnishee proceedings and execution of decree (Applications dated May 31, 2023 and June 12, 2023)· [2023] KEELRC 1634 (KLR)

East Africa Portland Cement & Anor v Kipchumba & 228 others; Kenya Chemical and Allied Union (Respondent) (Cause 2119 of 2014) [2023] KEELRC 1634 (KLR)

Employment and Labour Relations Court
7 July 2023
2,108 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered by Anna Ngibuini Mwaure J on July 7, 2023, dealt with two applications arising from long-running execution proceedings on a judgment awarded to grievants represented by the union. East Africa Portland Cement Company Limited applied to discharge a garnishee order nisi issued by Justice Byram Ongaya on May 30, 2023, alleging abuse of process and contempt, and to dismiss the union's notice of motion of May 25, 2023. Separately, 210 grievants represented by Gichuki Kingara & Co. Advocates sought leave to execute their portion of the decree independently (Kshs 636,482,603.40), determination of the applicable interest rate, inclusion of overtime, shift pay and salary/house allowance arrears as fresh awards, prorated garnished monies, and prohibitory orders over specified parcels of land. The court dismissed the company's application, holding that all grievants had been given leave to execute on May 16, 2023, that the garnishee order nisi was a legitimate part of execution and unopposed by other grievants or the garnishees, and it made the order absolute. It refused separate execution as impractical, directing instead that all proceeds be shared pro-rata among all grievants, granted the prohibitory orders over the listed land parcels, and declined prayers for fresh awards and interest rates as already covered by the judgment. All costs were put in the cause.

Key legal issues

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01

Whether the garnishee order nisi should be discharged

Holding

Dismissed - the order nisi was a legitimate part of execution granted under the leave to execute previously given, and no other grievants opposed it

Reasoning

The court had on May 16, 2023 ordered that all grievants were at liberty to execute per the judgment of January 13, 2020. The garnishee order nisi by Justice Ongaya flowed from that leave. None of the other grievant groups opposed the claimant's application, and the garnishees did not oppose it either, complaining only of insufficient funds. Accordingly the application by the cement company lacked merit and the decree absolute was granted.

p. 3
02

Whether groups of grievants may execute separately

Holding

No - execution to proceed jointly with pro-rata sharing of all recovered proceeds

Reasoning

The court found it impractical for the various grievant groups to execute separate portions of one decree against a single applicant whose assets could not be easily divided. Supervision of allocation belongs with the Deputy Registrar, not the court. A blanket order was therefore made covering all grievants, including the 229 and the single grievant represented by DK Muema advocate, for pro-rata sharing calculated by the parties' legal teams.

p. 4
03

Whether fresh awards and interest could now be granted

Holding

Declined - the amounts sought were already part of the judgment and execution calculations

Reasoning

The June 12, 2023 application sought recognition and inclusion of overtime, shift pay, basic salary and house allowance arrears plus interest under sections 26(1) and 26(2) of the Civil Procedure Act. The court held these were already awarded in the judgment and formed part of the execution calculations; it was too late to grant fresh awards and no further orders would be made in that regard.

p. 4

Legal principles established

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  • Where all grievants have been given leave to execute, a garnishee application by one group is part of the lawful execution process and cannot be set aside as abuse of process absent objection
  • Separate execution by different groups of joint decree holders is impractical; proceeds must be shared pro-rata

Court orders

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  1. 1.The applicant's application dated May 31, 2023 dismissed
  2. 2.The decree nisi orders of May 30, 2023 upheld and decree absolute granted as per order 3 of the claimant's application of May 25, 2023
  3. 3.Prayers 3 and 7 of the claimant's application dated May 25, 2023 granted
  4. 4.All proceeds realised from whichever source to be shared on pro-rata basis among all grievants (210, 229 and the one grievant represented by DK Muema advocate)
  5. 5.Prayer 7 of Gichuki Kingara & Co. Advocates' application granted - prohibitory orders registered on behalf of all grievants over listed LR numbers
  6. 6.Prayer 8 (Deputy Registrar to execute prohibitory orders) granted
  7. 7.Prayers 3, 4, 5 and 6 of the June 12, 2023 application declined
  8. 8.Costs of all applications since May 16, 2023 to be in the cause

Authorities

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Legislation

  • Civil Procedure Actsection 26(1)
  • Civil Procedure Actsection 26(2)
  • Civil Procedure Actsection 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
Jurisdiction invoked
Original employment and labour jurisdiction of the Employment and Labour Relations Court in execution of its decree

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, "East Africa Portland Cement & Anor v Kipchumba & 228 others; Kenya Chemical and Allied Union (Respondent) (Cause 2119 of 2014) [2023] KEELRC 1634 (KLR)", Case Analysis (2023). Cause concerning garnishee proceedings and execution of decree (Applications dated May 31, 2023 and June 12, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1634/eng@2023-07-07

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