Kamau v Kenya Union of Post Primary Education Teachers (KUPPET) & 4 others; Teachers Service Commission (Interested Party) (Cause 980 of 2012) [2023] KEELRC 3431 (KLR)
The bottom line
#A Kenyan court ruled union dues held through the TSC cannot be seized to pay judgments, and reopened the decree amount for recalculation.
What this practically means
#Executive summary
#Key legal issues
#Whether garnishee proceedings can issue against the Teachers Service Commission in respect of union dues
No. The TSC is not a debtor of the judgment debtor union and holds no attachable funds; union dues are disbursed directly by the Central Bank of Kenya under the IFMIS platform pursuant to Sections 48 and 50 of the Labour Relations Act.
Order 23 Rule 1 requires proof that a third party is indebted to the judgment debtor, and Rule 2 concerns deposits in a bank or financial institution. The TSC is neither. Evidence showed that deducted union dues never come into the TSC's hands; the TSC only does paperwork and the Central Bank debits and remits dues directly to the union's gazetted account per the Minister's order. No attachable debt or account exists.
Whether the Respondents' application dated 27th July 2022 seeking to set aside the decree and related orders should be allowed
Allowed to the extent that the ex parte orders of 27th September 2021 dismissing the application dated 29th June 2021 were set aside, since prior applications were struck out rather than dismissed on the merits and the dismissal occurred at a mention.
The Court found the previous applications were struck out as defective, not decided on merits, and the Claimant acting in person should not be denied vindication. More compellingly, the dismissal of the 29th June 2021 application occurred on a mention date, which was an error. The Court thus set aside the ex parte orders and reserved tabulation of the correct amount for determination.
The exact amount due to the Claimant under the decree
Deferred; the Court will tabulate the final judgment based on membership data produced by the Interested Party for Kiambu County from June 2011 to March 2013.
Having disposed of the preliminary issues, the Court identified the substantive issue as the exact entitlement of the Claimant. It directed itself to use the data produced by the Interested Party showing member numbers in Kiambu County for the relevant period as the basis for tabulating the final judgment.
Legal principles established
#- A garnishee order under Order 23 Rule 1 lies only where a third party is indebted to the judgment debtor or holds deposits of the judgment debtor in a bank or financial institution
- The Court has wide discretion to set aside ex parte orders or judgments, to be exercised judiciously
- A court errs by dismissing an application at a mention date rather than a hearing date
Court orders
#- 1.The Claimant's garnishee application dated 11th May 2022 is dismissed
- 2.The Respondents' application dated 27th July 2022 is allowed to the extent that the ex parte orders granted on 27th September 2021 (dismissal of the application dated 29th June 2021) are set aside
- 3.The Court will tabulate the final judgment based on the member data produced by the Interested Party for Kiambu County (2011-2013)
- Jurisdiction invoked
- Section 13 of the Employment and Labour Relations Court Act; Order 23 of the Civil Procedure Rules; Employment and Labour Relations Court (Procedure) Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau v Kenya Union of Post Primary Education Teachers (KUPPET) & 4 others; Teachers Service Commission (Interested Party) (Cause 980 of 2012) [2023] KEELRC 3431 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3431/eng@2023-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.