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ELRCPartially AllowedNot stated in the judgment

Gatoto v Muki Sacco Limited (Cause 45 of 2021) [2024] KEELRC 747 (KLR)

Employment and Labour Relations Court
20 March 2024
4,993 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court set aside orders made without hearing one side, released an attached car, and told the parties to reconcile disputed payment figures themselves.

What this practically means

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Executive summary

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This Employment and Labour Relations Court ruling by Hellen Wasilwa, J, delivered virtually on March 20, 2024, determined three competing applications arising from a judgment of January 24, 2023 in an unfair termination suit and its subsequent review. The Respondent (employer) applied on November 14, 2023 for a stay of execution, an injunction against sale of motor vehicle KCD xxxx, its release, and restraint against demanding further payment, contending it had paid the decretal sum, statutory deductions and negotiated auctioneer fees in full (a total of Kshs 537,384) before attachment on November 10, 2023. It filed a further application on November 28, 2023 seeking release of the vehicle and offering security for statutory deductions. The Claimant applied on November 27, 2023 to review and set aside the orders of April 13, 2023, made ex parte after the court reviewed the judgment on account of an arithmetical error (gross salary of Kshs 126,000 versus Kshs 162,200), arguing he was never served with the hearing notice and had since serviced his Sacco loan by a further Kshs 250,000. The court found the release application overtaken by the December 11, 2023 interim orders, which it restated. It held that the ex parte hearing of the review was an error, set aside the April 13, 2023 orders to permit the Claimant to reply, including to the new evidence, and directed the parties to reconcile the disputed PAYE figures. It made no other orders, with costs in the cause.

Questions the Court framed

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

  1. 1.Whether the Respondent's application dated November 14, 2023 (stay of execution, injunction and release of motor vehicle KCD xxxx) is merited
  2. 2.Whether the Claimant's application dated November 27, 2023 for review/setting aside of the proceedings and orders of April 13, 2023 is merited
  3. 3.Whether the Respondent has complied with the judgment of the Honourable Court
  4. 4.Whether the Claimant's application is brought with inordinate delay
  5. 5.Who bears the costs of the applications

Key legal issues

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01

Whether the ex parte hearing of the review application on April 13, 2023 was proper

Holding

The court held it was an error to hear the review ex parte without confirming service or the reason for the Claimant's absence, and set aside the orders of April 13, 2023 to allow the Claimant to reply

Reasoning

The court examined its record for April 13, 2023 and found the review application was heard in the absence of the Claimant's advocate without the court being advised on service or the reason for absence. It concluded that presuming service and absence without good cause, and reviewing the judgment without hearing the Claimant's submissions, was an error warranting review and setting aside of those orders so the Claimant could respond, including to the alleged further payment of Kshs 250,000 to the Sacco.

p. 9
02

Whether the Respondent complied with the decree before attachment of the motor vehicle

Holding

The court did not make a final finding on compliance, holding instead that the disputes over the PAYE and statutory deduction figures require reconciliation of figures by the parties

Reasoning

The Claimant alleged no proof of remittance of Kshs 205,339.45 in statutory deductions, relying on the evidentiary burden under sections 107, 109 and 112 of the Evidence Act, and noted inconsistent figures between the Respondent's letter of November 3, 2023 and its later claim of Kshs 239,800. The Respondent tendered RTGS, NSSF and KRA evidence of payment of Kshs 537,384. The court declined to determine the dispute and directed reconciliation of figures.

p. 9
03

Whether the motor vehicle KCD xxxx should be released

Holding

The vehicle's release had already been ordered on December 11, 2023 subject to storage fees and auctioneer's charges; those orders were restated, with post-release storage and auctioneer charges borne by the Claimant

Reasoning

The first application seeking release of the attached motor vehicle was rendered moot by the court's interim orders of December 11, 2023, made at an oral mention, which ordered release subject to payment of storage fees and auctioneers' charges. The court restated those orders and added that storage and auctioneers' charges accruing after the release orders would be borne by the Claimant.

p. 9

Legal principles established

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  • A court should not presume service and proceed to hear an application ex parte and make orders reviewing a judgment without considering the absent party's submissions
  • A litigant should not suffer the penalty of a mistake having his case heard on merit, per Philip Chemwolo & Another v Augustine Kubede (cited by the Claimant)

Court orders

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  1. 1.The orders of December 11, 2023 for release of motor vehicle KCD xxxx subject to payment of storage fees and auctioneer's charges are restated and remain standing
  2. 2.Any storage and auctioneers' charges incurred after the orders of release shall be borne by the Claimant/Respondent himself
  3. 3.The orders of April 13, 2023 are reviewed further and set aside to enable the Claimant to reply to the review prayers and tender his new evidence
  4. 4.The parties are urged to reconcile the figures, including the disputed PAYE amounts, to avoid further delay
  5. 5.Costs in the cause

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 159(2) of the Constitution; sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 Rule 1 and Order 22 Rule 22 of the Civil Procedure Rules

Relief refused

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Final determination of the application dated November 14, 2023

Overtaken by events after the court's interim orders of December 11, 2023 secured the release of the motor vehicle

p. 9

Claimant's application dated November 27, 2023 seeking to compel the Respondent to comply with the judgment

Subsumed into the setting aside of the April 13, 2023 orders and the direction to reconcile accounts; no compliance order issued

p. 10

Costs

Costs in the cause ('There are no orders of this court. Costs in the cause.')

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 are no orders of this court. Costs in the cause.
p. 10Final orders and costs
It was an error of the court to presume that the Claimant had been served and was absent without good cause and proceeded to hear the application ex-parte and make orders reviewing the Judgment without considering the Claimant’s submissions.
p. 9Ex parte hearing and right to be heard
I will review the orders of 13/4/2023 further and set them aside to enable the Respondent Claimant reply to the review prayers for consideration together with the new evidence they also purport to have.
p. 9Setting aside ex parte review orders
My view of all these applications is that they only need reconciliation of figures which the parties are urged to do in order to avoid further delay in the resolution of this case.
p. 10Reconciliation of accounts
These orders are still standing and I restate the same and add that any storage and auctioneers’ charges incurred after the said date, after the orders of release will be born by the Claimant Respondent himself.
p. 9Release of motor vehicle and post-release charges

Issues in the judgment

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minor

The judgment inconsistently dates the original judgment as January 24, 2023 in one passage and January 24, 2024 in another

minor

The judgment refers to the first application as dated November 27, 2023 in the disposition when the release application was dated November 14, 2023 (the November 27, 2023 application is the Claimant's)

minor

The case number of the suit is not disclosed anywhere in the judgment

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, "Gatoto v Muki Sacco Limited (Cause 45 of 2021) [2024] KEELRC 747 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/747/eng@2024-03-20

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