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ELRCPartially AllowedApplication dated October 16, 2023 (Garnishee application dated October 9, 2023)· [2023] KEELRC 2606 (KLR)

Katendeigwa v D.Light Limited (Employment and Labour Relations Cause 770 of 2019) [2023] KEELRC 2606 (KLR)

Employment and Labour Relations Court
26 October 2023
BMB. O. M. Manani
2,004 words in judgment
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The bottom line

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A Kenyan court cannot seize a losing party's bank account to settle a judgment before the exact amount owed, including costs, has been fixed, unless the court first grants special permission.

What this practically means

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Executive summary

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The claimant obtained a judgment against the respondent delivered on June 22, 2023 and, seeking to execute it, applied on October 9, 2023 for garnishee orders. An order nisi was issued ex-parte on October 11, 2023 and served on the respondent and the garnishee, Stanbic Bank Ltd. The respondent then applied on October 16, 2023, contending that the claimant commenced execution before costs were ascertained and without leave of the court, contrary to section 94 of the Civil Procedure Act. The claimant countered that section 94 does not outlaw such execution and that, under Order 23 of the Civil Procedure Rules, he needed only to show a valid, unsatisfied decree and third-party-held funds. The court, per B. O. M. Manani, Judge, held that section 94 applies to the ELRC via rule 32(2) of the ELRC (Procedure) Rules, 2016, and that execution of a decree before ascertainment of costs requires leave, to be sought orally at judgment or, thereafter, by written application served on the Judgment Debtor and heard inter partes, following Bamburi Portland Cement, Lakeland Motors, Kartar Singh Dhupar and James G. K. Njoroge. The record showed no leave sought or granted, and the court could not grant it suo moto. Garnishee proceedings being execution proceedings, they were premature and invalid. The court vacated the order nisi and made no order as to costs, while noting the claimant may enforce the decree after taxation or upon proper leave.

Key legal issues

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01

Whether garnishee proceedings commenced before taxation of costs without leave under section 94 of the Civil Procedure Act are valid

Holding

The Garnishee proceedings were premature and invalid; the order nisi was vacated.

Reasoning

Section 94 of the Civil Procedure Act, applicable to the ELRC through rule 32(2) of the ELRC (Procedure) Rules, 2016, permits execution of a decree before ascertainment of costs only with the court's leave. Precedent establishes that leave not sought at delivery of judgment must be sought by written application, served on the Judgment Debtor and heard inter partes. The claimant neither sought nor obtained leave; the court cannot grant it suo moto. Garnishee proceedings are execution proceedings and were therefore premature and invalid.

p. 4

Legal principles established

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  • Garnishee proceedings are execution proceedings and, where commenced before costs are ascertained, require leave of the court under section 94 of the Civil Procedure Act; such leave, if not sought at delivery of judgment, must be sought by written application served on the Judgment Debtor and heard inter partes.

Court orders

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  1. 1.A declaration that the Garnishee proceedings commenced through the application dated October 9, 2023 are premature and therefore invalid
  2. 2.The order of Garnishee Nisi issued on October 11, 2023 is vacated
  3. 3.No order as to costs

Authorities

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Legislation

  • Civil Procedure Actsection 94
  • Employment and Labour Relations Court (Procedure) Rules, 2016rule 32(2)
  • Civil Procedure RulesOrder 23
  • Civil Procedure RulesOrder 22
  • Civil Procedure RulesOrder 36
  • ELRC Procedure RulesRule 28(3)

Cases cited (4)

  • Bamburi Portland Cement Company Limited v Imranali Chandbhai Abdulhussein
    [1996] eKLR
  • Lakeland Motors Ltd v Sembi
    (1998) [1998] eKLR
  • Kartar Singh Dhupar & Co. Ltd v Lianard Holdings Limited
    [2017] eKLR
  • James G. K. Njoroge t/a Baraka Tools & Hardware v Kenya Cement Marketing Co Ltd
    [2009] eKLR
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016, rule 32(2), applying section 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, "Katendeigwa v D.Light Limited (Employment and Labour Relations Cause 770 of 2019) [2023] KEELRC 2606 (KLR)", Case Analysis (2023). Application dated October 16, 2023 (Garnishee application dated October 9, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2606/eng@2023-10-26

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