Ludaava v Musebe & 2 others (Employment and Labour Relations Cause 3 of 2020) [2024] KEELRC 987 (KLR)
The bottom line
#The court cancelled a garnishee order because the claimant used wrong figures, but allowed execution on the correctly calculated amount after PAYE deductions.
What this practically means
#Executive summary
#Key legal issues
#Validity of garnishee order nisi founded on erroneous figures
Order Nisi set aside; execution to be based on the decreed award of Kshs. 2,966,283/- less 30% PAYE, plus assessed costs of Kshs. 251,909.21/- and decree cost of Kshs. 1,500, with interest at court rates on the post-deduction sum.
The decree awarded Kshs. 2,966,283/- subject to PAYE deductions, but the claimant's application sought Kshs. 3,921,858.3294 including figures inconsistent with the decree. The court found a substantive error on the face of the record, set aside the order nisi and directed the Deputy Registrar to issue a correct Decree Nisi.
Leave for incoming advocate under Order 9 rule 9
Refused because the consent relied on was not annexed.
Order 9 rule 9 requires either an application with notice to all parties or a consent filed between the outgoing and incoming advocates. The application referred to a consent but did not annex it, leaving the court no basis to grant leave.
Res judicata on statutory deductions
Prayer 3 of the judgment debtor's application was res judicata, the PAYE rate of 30% having been determined in the ruling of 14th April 2023.
The court had already pronounced itself on the applicable PAYE deduction in its earlier ruling; a party cannot re-litigate the same issue by way of an application in garnishee proceedings.
Legal principles established
#- A garnishee application must be founded on figures consistent with the decree; an order nisi based on erroneous figures will be set aside.
- Execution after a PAYE-subject award proceeds on the net sum after deductions, with interest on that sum.
- A change of advocate after judgment requires an order of the court upon an application or a filed consent, which must be produced.
Court orders
#- 1.Prayer 1 of the 1st respondent's application (leave to come on record) refused for want of an annexed consent
- 2.Prayer 3 of the 1st respondent's application (interpretation of judgment on statutory deductions) declined as res judicata
- 3.Application by the Judgment Debtor dated 3rd April 2024 dismissed
- 4.Garnishee Order Nisi issued on 20th March 2024 set aside for being based on erroneous figures
- 5.Notice of Motion dated 5th March 2024 dismissed for being based on erroneous figures
- 6.A correct Decree Nisi to be issued by the Deputy Registrar
- 7.Each party to bear own costs in all the consolidated applications
- Jurisdiction invoked
- Order 23 rules 1 and 2 of the Civil Procedure Rules (garnishee proceedings); Order 9 rule 9 Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ludaava v Musebe & 2 others (Employment and Labour Relations Cause 3 of 2020) [2024] KEELRC 987 (KLR)", Case Analysis (2024). Garnishee Proceedings dated 5th March 2024 (with Notice of Motion dated 24th March 2024 and application dated 3rd April 2024, consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/987/eng@2024-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.