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ELRCDismissedNakuru ELRC No. 2 of 2013 (Notice of Motion dated May 5, 2022)· [2023] KEELRC 1819 (KLR)

Kariuki & 16 others v Kenya Agricultural Research Institute (Employment and Labour Relations Petition 2 of 2013) [2023] KEELRC 1819 (KLR)

Employment and Labour Relations Court
25 July 2023
4,219 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed KALRO's bid to cancel attachment warrants because the debt had been paid and the warrants had already expired.

What this practically means

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Executive summary

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The Applicant, Kenya Agricultural Research Institute (now KALRO), moved the court by Notice of Motion dated May 5, 2022 seeking to set aside, cancel and recall warrants of attachment and sale dated July 26, 2022, issued at the instance of the Respondents (Peter Wambugu Kariuki & 16 others), claiming Kshs 7,133,407.50. The Applicant argued that the decretal sum of Kshs 6,942,616.70 had been deposited in a joint interest-earning account in the names of both parties' advocates as security for due performance of the decree following a consent of January 24, 2020, and that execution without first seeking release of that money, and without a notice to show cause under Order 22 Rule 18(1)(a) (the decree being over a year old), and without leave under section 94 of the Civil Procedure Act for partial execution before taxation, was unlawful. The Applicant also complained of paying Kshs 283,243 to auctioneers under pressure. The Respondents countered that the last order in the matter was the Court of Appeal's dismissal of the review application on April 28, 2022, so execution commenced within a year and no notice was needed; that they had written on May 5 and May 19, 2022 requesting release of the funds without response; that the warrants had expired and the decretal sum had been released; and that the application was an abuse of process. The court found execution was commenced within one year of the last order, so Order 22 Rule 18(1) did not apply; that the applicants agreed to release the funds only after proclamation; and that with the decretal sum paid and the warrants expired, there was nothing to recall or set aside. The application was dismissed with no order of costs.

Key legal issues

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01

Whether the failure to issue a notice to show cause under Order 22 Rule 18(1)(a) rendered the warrants of attachment unlawful

Holding

No - execution was commenced within one year of the last order (the Court of Appeal review decision of April 28, 2022), so the notice requirement did not apply

Reasoning

The court traced the chronology from the judgment of May 3, 2013 through the appeal, cross-appeal, review dismissal on April 28, 2022, and warrants applied for on July 26, 2022. Since execution began within one year of the last order of the Court of Appeal, the proviso/scope of Order 22 Rule 18(1) requiring notice to show cause was not triggered, and the reliance on authorities like Rosslyn Development was misplaced.

p. 7
02

Whether execution was unlawful because the decretal sum was secured in a joint interest-earning account

Holding

The respondents requested release of the funds by letters of May 5 and May 19, 2022; the applicants only agreed to sign the consent releasing the funds after proclamation had begun, so the execution process was proper

Reasoning

The court found that the respondents wrote to the applicants seeking release of the deposited funds, and the applicants were non-committal. Only after the auctioneers' proclamation did the applicants agree to sign the consent to transfer the funds. The court thus rejected the claim of double recovery and found the execution process, preceded by communication between the parties, was clear and lawful.

p. 8
03

Whether there remained anything capable of being recalled or set aside

Holding

No - the decretal sum had been paid and the warrants of attachment had expired, rendering the application moot/overtaken by events

Reasoning

The court noted the respondents' point that the warrants had expired and that the decretal sum had been released from the joint account. Since the funds had been paid and no active warrants existed, there was nothing left to recall, cancel or set aside, making the application futile.

p. 8

Legal principles established

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  • Where execution proceedings are commenced within one year of the last order in the matter, the notice to show cause requirement under Order 22 Rule 18(1) does not apply
  • An application to recall warrants of attachment that have expired and where the decretal sum has been paid is overtaken by events and untenable

Court orders

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  1. 1.The Applicant's Notice of Motion dated May 5, 2022 is dismissed
  2. 2.No order of costs

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12(3)(viii)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 32
  • Civil Procedure RulesOrder 22 Rule 18(1)(a)
  • Civil Procedure ActSections 3A, 63(e), 94, 38
  • Appellate Jurisdiction ActSection 4

Cases cited (12)

  • Factory Guards Limited v Abel Vundi Kitungu
    [2015] eKLR
  • Kartar Singh Dhupar & Co Limited v Lianard Holdings Limited
    [2017] eKLR
  • Lakeland Motors Ltd vs Sembi
    (1998) LLR 682
  • Bamburi Portland Cement Co. Ltd vs Abdulhussein
    (1995) LLR 2519 (CAK)
  • Erad Suppliers & General Contractors vs NCPB
  • Rosslyn Development Limited v Bidco Oil Refeneries Limited
    [2014] eKLR
  • Rubo Kingetich Arap Cheruiyot v Peter Kiprop Rotich
    [2006] eKLR
  • Andrew Achoki Mogaka v Samson Nyambati Nyamweya and another
    [2010] eKLR
  • James Wambugu v Mellen Mbera
    [2020] eKLR
  • Nicholas Sumba v Radio Africa ltd, Jimmy Gathu and another
    [2017] eKLR
  • Republic v Chief of General staff and another
    [2017] eKLR
  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai and 4 others
    [2014] eKLR
Jurisdiction invoked
Section 12(3)(viii) of the Employment and Labour Relations Court Act, rule 32 of the ELRC (Procedure) Rules, 2016, Order 22 Rule 18(1)(a) of the Civil Procedure Rules, and Sections 3A, 63(e) and 94 of the Civil Procedure Act

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, "Kariuki & 16 others v Kenya Agricultural Research Institute (Employment and Labour Relations Petition 2 of 2013) [2023] KEELRC 1819 (KLR)", Case Analysis (2023). Nakuru ELRC No. 2 of 2013 (Notice of Motion dated May 5, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1819/eng@2023-07-25

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