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ELRCDismissedApplication dated 20th June, 2023 (arising from judgment of 11th November, 2020)

Kenya Broadcasting Corporation v Kasisi & 10 others (Suing in a Representative Capacity in Respect of 257 Employees of Kenya Broadcasting Corporation); Viewline Auctioneers (Interested Party) (Cause 845 of 2017) [2023] KEELRC 3121 (KLR)

Employment and Labour Relations Court
17 November 2023
1,561 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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KBC lost its bid to block seizure of its vehicles after failing to meet a Court of Appeal condition, proving state corporations get no special protection from paying court-ordered judgments in Kenya.

What this practically means

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Executive summary

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The Applicant, Kenya Broadcasting Corporation, a State Corporation established under the Kenya Broadcasting Corporation Act, filed an application dated 20th June, 2023 under section 47(a) and (b) of that Act and sections 3 and 12(3) and (4) of the Employment and Labour Relations Court Act. It sought injunctive orders prohibiting execution of proclamation notices dated 12th May, 2023 and any future proclamations in execution of a decree issued on 17th September, 2021 following a judgment of 11th November, 2020, and an order compelling the Interested Party auctioneer to unconditionally release motor vehicles KCT 800Y and KBT 699N seized under the proclamation. The Applicant relied on section 47, which restricts execution against its property, and cited prior proceedings including a ruling of Justice Mbaru, appeals, and a conditional stay from the Court of Appeal requiring deposit of Kshs 15 Million which it failed to meet. The Respondents opposed, arguing the application was a disguised stay application that was res judicata, that the stay had lapsed on 20th November, 2022, that the Managing Director disobeyed a court order to show cause on payment modalities, and that only Kshs 5 Million had been paid towards the decree. The court held that an injunction cannot issue against a decree, only a stay; that the issues had been litigated in this court and the Court of Appeal whose rulings this court could not overturn; and that re-litigation amounted to abuse of process. The application was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the court can grant injunctive orders prohibiting execution of a decree, including the proclamation notices dated 12th May, 2023 and any future proclamations
  2. 2.Whether the Interested Party should be compelled to unconditionally release motor vehicles KCT 800Y and KBT 699N seized on account of proclamation
  3. 3.Whether section 47 of the Kenya Broadcasting Corporation Act bars execution against the Applicant's property by proclamation, attachment and sale
  4. 4.Whether the application is res judicata and an abuse of the court process given prior rulings of this court and the Court of Appeal

Key legal issues

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01

Nature of the relief sought - injunction versus stay of execution

Holding

The application, though couched as an injunction, was in substance a seek for stay of execution of the decree issued on 17th September, 2021

Reasoning

The court held that there can never be an injunction on a court's decree, only a stay. Since the Applicant had previously sought and been refused stay by both this court and the Court of Appeal, the application was misconceived and an abuse of the court process.

p. 3
02

Effect of section 47 of the Kenya Broadcasting Corporation Act on execution

Holding

Section 47 restricts attachment of the Corporation's property by proclamation, but the Managing Director must give permission for such attachment and show cause on payment modalities

Reasoning

A prior ruling of Justice Mbaru of 19th May, 2022 had held that section 47 prohibits attachment by proclamation, but mandated the Managing Director to attend court and furnish modalities of payment. He never attended, amounting to a clear disobedience of a court order, undermining the Applicant's reliance on section 47.

p. 4
03

Consequence of failure to comply with conditional stay of the Court of Appeal

Holding

Failure to deposit Kshs 15 Million as security caused the stay to lapse on 20th November, 2022, exposing the Applicant to execution

Reasoning

The Court of Appeal granted a conditional stay on 21st October, 2022 requiring deposit of Kshs 15 Million as security within 30 days. The Applicant did not comply, the stay lapsed, and the Respondents were entitled to resume execution to satisfy the decree.

p. 2

Legal principles established

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  • An order of injunction cannot issue in respect of a court decree; the only remedy available is a stay of execution
  • A subordinate court cannot overturn or revisit a ruling of the Court of Appeal; re-litigation of issues already determined amounts to abuse of process

Court orders

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  1. 1.The Applicant's application dated 20th June, 2023 is dismissed
  2. 2.The Applicant to pay the Respondents' costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Section 47(a) and (b) of the Kenya Broadcasting Corporation Act; Sections 3 and 12(3) and (4) of the Employment and Labour Relations Court Act

Relief refused

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Injunction prohibiting execution of the proclamation notices dated 12th May, 2023 and any future proclamation notices

The application was in substance a bid for stay of execution of a decree already litigated before this court and the Court of Appeal, and was res judicata and an abuse of process

p. 4

Order compelling the Interested Party to unconditionally release motor vehicles KCT 800Y Nissan Urvan Van and KBT 699N

The stay granted by the Court of Appeal lapsed on 20th November, 2022 upon the Applicant's failure to deposit Kshs 15 Million security; the Respondents were entitled to recover the balance of the decretal sum

p. 4

Costs

The application is dismissed with costs to the Respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

there can never be an injunctive order on a courts decree but only a stay of the same
p. 3injunction cannot lie against a decree
The Court of Appeal being a Court superior to this court, this court cannot overturn its ruling.
p. 4hierarchy of courts
From the Court record, he never attended court which is a clear disobedience of a Court order.
p. 4disobedience of court orders
The application is therefore found without merit and is hereby dismissed with costs.
p. 4final orders

Issues in the judgment

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minor

Internal inconsistency in the record on the date of payment: the Applicant avers payment of Kshs 5 Million on 13th June, 2023 while the judgment elsewhere records payment in June 2022

minor

The court describes the 19th May, 2022 order as both a summons and a Ruling by Justice Mbaru on the Respondents' application dated 18th March, 2022 seeking stay of execution, although the Respondents were the decree holders seeking stay

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 Broadcasting Corporation v Kasisi & 10 others (Suing in a Representative Capacity in Respect of 257 Employees of Kenya Broadcasting Corporation); Viewline Auctioneers (Interested Party) (Cause 845 of 2017) [2023] KEELRC 3121 (KLR)", Case Analysis (2023). Application dated 20th June, 2023 (arising from judgment of 11th November, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3121/eng@2023-11-17

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