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ELRCDismissedGarnishee Proceedings dated 5th March 2024 (with Notice of Motion dated 24th March 2024 and application dated 3rd April 2024, consolidated)· [2024] KEELRC 987 (KLR)

Ludaava v Musebe & 2 others (Employment and Labour Relations Cause 3 of 2020) [2024] KEELRC 987 (KLR)

Employment and Labour Relations Court
8 April 2024
1,474 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The court dealt with consolidated applications arising from a judgment in favour of the Claimant against Bonito Hotels Limited for Kshs. 2,966,283/- subject to PAYE deductions, with assessed costs of Kshs. 251,909.21/-, decree costs of Kshs. 1,500 and interest at court rates. An ex parte Garnishee Order Nisi had been issued on 20th March 2024 freezing Kshs. 3,921,858.3294/- in the judgment debtor's accounts at Bank of Africa, KCB and Family Bank, Bungoma. At the inter partes hearing the judgment debtor sought, through an application dated 3rd April 2024, adoption of a consent between the law firms, setting aside the order nisi, and interpretation of the judgment on statutory deductions. The court consolidated the applications and dismissed the judgment debtor's application: leave under Order 9 rule 9 was refused because the consent between the advocates was not annexed, and prayer 3 was res judicata since the ruling of 14th April 2023 had already fixed the PAYE deduction at 30%. On the garnishee application itself, the court found the figures relied upon were substantively erroneous and contrary to the decree, set aside the Order Nisi, dismissed the application, and directed the Deputy Registrar to issue a correct Decree Nisi with execution based on the award less 30% PAYE plus assessed costs and decree costs, with interest at court rates on the post-deduction sum. Each party was ordered to bear its own costs.

Key legal issues

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01

Validity of garnishee order nisi founded on erroneous figures

Holding

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.

Reasoning

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.

p. 3
02

Leave for incoming advocate under Order 9 rule 9

Holding

Refused because the consent relied on was not annexed.

Reasoning

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.

p. 2
03

Res judicata on statutory deductions

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Prayer 1 of the 1st respondent's application (leave to come on record) refused for want of an annexed consent
  2. 2.Prayer 3 of the 1st respondent's application (interpretation of judgment on statutory deductions) declined as res judicata
  3. 3.Application by the Judgment Debtor dated 3rd April 2024 dismissed
  4. 4.Garnishee Order Nisi issued on 20th March 2024 set aside for being based on erroneous figures
  5. 5.Notice of Motion dated 5th March 2024 dismissed for being based on erroneous figures
  6. 6.A correct Decree Nisi to be issued by the Deputy Registrar
  7. 7.Each party to bear own costs in all the consolidated applications

Authorities

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Legislation

  • Civil Procedure RulesOrder 23 rules 1 and 2
  • Civil Procedure RulesOrder 9 rule 9
  • Civil Procedure RulesOrder 22 rule 42
Jurisdiction invoked
Order 23 rules 1 and 2 of the Civil Procedure Rules (garnishee proceedings); Order 9 rule 9 Civil Procedure Rules

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, "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.