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ELRCDismissedNot stated in judgment· [2023] KEELRC 3139 (KLR)

Ngari v Kenya Meat Commission (Cause 64 of 2019) [2023] KEELRC 3139 (KLR)

Employment and Labour Relations Court
24 November 2023
SRSTELLA RUTTO
1,579 words in judgment
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The bottom line

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A Kenyan court refused to let a worker collect her judgment before costs were taxed, because she couldn't show compelling reasons why she needed to.

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 Stella Rutto, Judge, on 24th November 2023, determined the Claimant's Notice of Motion dated 28th June 2023 seeking leave to execute the decree/judgment before taxation of costs, pursuant to Rule 32(2) of the ELRC (Procedure) Rules and Sections 94 and 99 of the Civil Procedure Act. The underlying judgment of 9th June 2023 had declared that the Claimant's contract was extended to 15th April 2019 and awarded gratuity of Kshs 3,916,075.00 for 82 months; typographical errors were corrected on 11th July 2023. The Claimant argued hardship from withheld salaries spanning eight years and relied on authority that a pending appeal does not bar a decree-holder from enjoying the fruits of litigation. The Respondent opposed, contending the Claimant had not filed her bill of costs nor shown good faith, that she had secured other employment, and that execution would prejudice its intended appeal. The court held that execution before taxation is a matter of discretion, and that the phrase 'where necessary' in Section 94 connotes compelling reasons and exceptional circumstances. Finding no such justification, and noting that the Claimant had not instituted taxation proceedings after the judgment was corrected, the court declined the application with each party bearing its own costs.

Key legal issues

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01

Whether leave to execute a decree before taxation of costs should be granted

Holding

The application was declined; the Claimant failed to show compelling reasons and had not pursued taxation

Reasoning

Section 94 confers a discretion exercisable where the court considers it necessary, which the court read as requiring compelling reasons and exceptional circumstances. The Claimant's asserted hardship was insufficient. Further, after the court corrected typographical errors in the judgment on 11th July 2023, the Claimant could have extracted the decree and commenced taxation but had not done so or explained the delay.

p. 3

Legal principles established

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  • Section 94 of the Civil Procedure Act requires leave of the court, obtained by notice of motion if not sought at judgment, for execution of a decree before taxation of costs
  • The 'where necessary' threshold in Section 94 connotes compelling reasons and exceptional circumstances

Court orders

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  1. 1.The Claimant's Application dated 28th June 2023 is declined/dismissed
  2. 2.Each party bears its own costs

Authorities

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Legislation

  • Civil Procedure ActSection 94
  • Civil Procedure ActSection 99
  • Civil Procedure ActSection 1B
  • Employment and Labour Relations Court (Procedure) RulesRule 32(2)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (4)

  • Hosea Sitienei & another vs University of Eldoret & 11 Others
    (2019) eKLR
  • Mercedes Sanchez Rau Tussel vs Samken Ltd & 2 Others
    [2002] eKLR
  • African Commuter Services Ltd vs Kenya Civil Aviation Authority & 2 Others
    (2014) eKLR
  • Bamburi Portland Cement Co. Ltd vs Hussein
    (1995) LLR 1870 (CAK)
Jurisdiction invoked
Rule 32(2) of the Employment and Labour Relations Court (Procedure) Rules and Sections 94 and 99 of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ngari v Kenya Meat Commission (Cause 64 of 2019) [2023] KEELRC 3139 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3139/eng@2023-11-24

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