Kitua v Kenwan Services Limited (Employment and Labour Relations Cause 1753 of 2016) [2024] KEELRC 205 (KLR)
The bottom line
#A Kenyan court refused to stop execution of a costs decree, ruling that service was proven and skipping decree approval was just a technicality.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant was served with the Bill of Costs, Notice of Taxation and Ruling Notice
The court found that service was duly effected, as shown by affidavits of service which the Applicant did not rebut, and that the Director's claim of ignorance of proceedings since 2018 was untrue since he attended the hearing on 15th June 2022
The record showed the matter proceeded to hearing on 15th June 2022 in the presence of the Respondent's Director, who cross-examined the Claimant and gave evidence. Two affidavits of service by Owuor Reen proved service of the taxation notice, bill of costs and ruling notice. The Applicant did not controvert these averments, so the court had no reason to doubt service.
Whether failure to forward the draft decree for approval vitiates the decree and execution
No - it is a procedural technicality cured by Article 159(2)(d) where the decree conforms with the judgment
Relying on Eco Bank Ltd v Elsek (Kenya) Limited and Florence Cherugut v Cheptum Murei Annah, the court held that failure to forward a draft decree for approval only warrants setting aside execution if the decree is shown not to conform with the judgment. Here the decree accorded with the judgment of 9th December 2022, so the complaint went only to the manner of extraction, not substance.
Legal principles established
#- Failure to forward a draft decree for approval is a procedural irregularity that does not invalidate the decree unless the decree does not conform to the judgment
- Uncontroverted affidavits of service are proof of due service
Court orders
#- 1.The Application dated 29th June 2023 is dismissed with costs
- Jurisdiction invoked
- Employment and Labour Relations Court's supervisory and discretionary powers over its Deputy Registrar's taxation ruling; invoked Civil Procedure Act sections 1A and 1B and Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitua v Kenwan Services Limited (Employment and Labour Relations Cause 1753 of 2016) [2024] KEELRC 205 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/205/eng@2024-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.