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ELRCOtherELRC NO. 271 OF 2017· [2023] KEELRC 3347 (KLR)

George v Pollman’s Tours & Safaris (Cause 271 of 2017) [2023] KEELRC 3347 (KLR)

Employment and Labour Relations Court
19 December 2023
3,138 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to stop execution of an employment award but made the employer-style decree holder pay the auctioneer's fees for skipping proper procedures.

What this practically means

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Executive summary

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The Respondent/Applicant, the judgment debtor in ELRC No. 271 of 2017, moved the court by Notice of Motion dated 6th March 2023 seeking a stay of execution of the judgment delivered on 22nd March 2022 by Ocharo, J, and an order permanently stopping execution, contending the Claimant commenced irregular execution without extracting a decree and rejected a settlement cheque of Kshs.322,837.00 tendered net of statutory deductions under section 49(2) of the Employment Act. The Claimant/Respondent opposed, asserting the execution followed validly issued warrants, and that auctioneers' commissions accrue upon attachment under Rule 12(6) of the Auctioneers Rules. The court framed one issue: whether the orders sought should issue. It held that extraction of a decree before execution is mandatory, but following Eco Bank Ltd v Elsek & Elsek and allied authorities, failure to forward a draft decree for approval is not fatal to execution where the decree accords with the judgment. The court found the decree was drawn according to the judgment, rejected the claim of exaggeration after computing interest, and found the Applicant had not demonstrated how the cheque figure was arrived at. However, the Claimant's unexplained failure to serve the final decree warranted that he bear the auctioneers' fees, applying Landmark Holdings Ltd v Robert Mecems Kinyua. The court directed the parties to mutually compute the settlement amount within 7 days, failing which the Deputy Registrar to compute it, considering statutory deductions. The application was otherwise not granted in the terms sought; no costs order for the application was made.

Key legal issues

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01

Whether execution commenced without a decree extracted in accordance with Order 21 Rule 8 of the Civil Procedure Rules is irregular and fatal to execution

Holding

Failure to forward a draft decree for the judgment debtor's approval is not fatal to execution where the decree accords with the judgment, but the unexplained failure to serve the final decree should not be allowed to prejudice the judgment debtor.

Reasoning

The court reviewed Order 21 Rules 7-9 of the Civil Procedure Rules and adopted Eco Bank Ltd v Elsek & Elsek, holding that non-approval of a draft decree does not warrant setting aside execution unless the decree deviates from the judgment. Here the decree accorded with the judgment. However, the Claimant deliberately failed to explain why the final decree was not served, leaving the Applicant unable to ascertain the exact sum and interest payable; the court held a court would be remiss to allow prejudice from such an unexplained failure.

p. 6
02

Whether the sum in the warrants of attachment (Kshs.428,993.90) was exaggerated

Holding

The warrants were not exaggerated; the court computed interest on the awarded sum at 12% for six and a half years and found the figure justified.

Reasoning

The judgment awarded interest at court rates from filing until payment in full. Computing interest of 12% on the decretal sum over the period 14th February 2011 to 27th February 2023 yielded approximately Kshs.138,798.40, which supported the interest figure of Kshs.128,706.90 in the warrants. The court therefore rejected the Applicant's claim of exaggeration.

p. 6
03

Who should bear the auctioneers' fees

Holding

The Claimant/Respondent should settle the auctioneers' fees, following Landmark Holdings Ltd v Robert Mecems Kinyua.

Reasoning

The court found the proclamation preceded the issuance of the settlement cheque and the Claimant failed to explain non-service of the final decree. Following the Landmark Holdings decision, where an irregularity in the execution process occasions costs, the decree holder should bear them, even though the execution itself is not set aside.

p. 6
04

Whether the cheque of Kshs.322,837.00 discharged the decretal sum net of statutory deductions

Holding

The Applicant failed to demonstrate the derivation of the net figure or the deductions made.

Reasoning

While acknowledging that sums payable to a claimant may be less statutory deductions, the court found the Applicant did not demonstrate how the cheque figure was computed or what was deducted for each statutory requirement, so the cheque could not be accepted as full and final settlement as tendered.

p. 6

Legal principles established

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  • Extraction of a decree prior to execution is mandatory, but failure to forward the draft decree to the judgment debtor for approval is not, of itself, fatal to execution proceedings provided the decree conforms to the judgment.
  • The purpose of requiring approval of a draft decree is to prevent disputes and ambushes on judgment debtors; an unexplained failure to serve the final decree may attract prejudicial consequences against the decree holder.
  • Where the decree holder's irregularity occasions costs, the decree holder bears the auctioneers' fees.

Court orders

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  1. 1.The parties to mutually compute the settlement amount within 7 days of the ruling
  2. 2.In default, the Deputy Registrar of the court to compute the settlement amount, taking into account statutory deductions
  3. 3.The Claimant/Respondent to settle the auctioneers' fees occasioned by the irregularity

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12
  • Employment ActSection 49(1)(c), 49(2)
  • Employment and Labour Relations Court (Procedure) RulesRule 17
  • Civil Procedure RulesOrder 21 Rules 7, 8, 9
  • Auctioneers RulesRule 12(6)
  • Advocates (Remuneration) OrderParagraph 10
  • Constitution of KenyaArticle 159(2)(d), Article 48
  • Civil Procedure ActSection 1B

Cases cited (5)

  • Eco Bank Limited vs. Elsek & Elsek (Kenya) Limited & Others
    [2015] eKLR
  • Joshua Munywoki v Patrick Mukonza Nzioki
    [2019] eKLR
  • Lochab Transporters Ltd v Fanuel Kambona Mutesa
    [2017] eKLR
  • Florence Cherugut v Cheptum Murei Annah
    [2022] eKLR
  • Landmark Holdings Ltd versus Robert Mecems Kinyua
    (2018) eklr
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act, 2011; Section 49 of the Employment Act, 2007; Rule 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "George v Pollman’s Tours & Safaris (Cause 271 of 2017) [2023] KEELRC 3347 (KLR)", Case Analysis (2023). ELRC NO. 271 OF 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3347/eng@2023-12-19

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