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ELRCPartially AllowedNot stated in the judgment· [2024] KEELRC 1103 (KLR)

Vittone v SOS Children’s Villages International (Cause 295 of 2019) [2024] KEELRC 1103 (KLR)

Employment and Labour Relations Court of Kenya
9 May 2024
3,767 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court by Abuodha Nelson Jorum, Judge, determined two interlocutory applications arising from a judgment delivered on 17 January 2023 by Lady Justice Monica Mbaru, which found the Claimant's termination unlawful and awarded her compensation, notice pay and costs, taxed at KES 808,351.67. The Respondent sought declaration that warrants of attachment dated 2 November 2023 and a proclamation notice dated 6 November 2023 were irregular, null and void, their cancellation, an order that it pay no auctioneer or court collection fees, and correction of the decree to exclude interest. The Claimant sought review of the judgment under section 16 of the ELRC Act and Rule 33 of the ELRC (Procedure) Rules to include interest on the decretal sum from 17 January 2023 to 9 November 2023. The court found the decretal sum had been paid save for disputed interest. Guided by section 13 of the Employment and Labour Relations Act, Rules 31 and 32 of the ELRC Rules and Orders 21 rules 7 and 8 of the Civil Procedure Rules, it held the warrants were issued irregularly because no decree had been extracted, approved and signed, and set them aside to that extent only. The Respondent was absolved of auctioneer fees, which the Claimant was to bear. On interest, applying section 26(2) of the Civil Procedure Act as construed by the Court of Appeal in Kenya Planters Cooperative Union v Interchem, the court held that where a decree is silent on interest, interest accrues at court rates from judgment to payment; it found no unreasonable delay by the Claimant and directed the Deputy Registrar to draw a decree including accrued interest from 17 January 2023 to 9 November 2023. Each party was ordered to bear its own costs of the applications.

Key legal issues

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01

Legality of warrants of attachment issued in the absence of an extracted, approved and signed decree

Holding

The warrants of attachment dated 2 November 2023 were issued irregularly and unprocedurally and were set aside to the extent that no decree was in place

Reasoning

Section 13 of the Employment and Labour Relations Act requires enforcement in accordance with Civil Procedure Act rules; Rules 31 and 32 of the ELRC Rules and Orders 21 rules 7 and 8 of the Civil Procedure Rules require a decree drawn in accordance with the judgment and prepared through a draft-approval process. Since no decree had been extracted and served before the warrants issued, the execution process was flawed and was set aside, though the decretal sums were already settled.

p. 6
02

Liability for auctioneer fees arising from an unlawful attachment

Holding

The Respondent is not liable for the auctioneer fees of the flawed process; the Claimant shall bear the auctioneer's costs

Reasoning

Having found the warrants irregular and the execution process illegal and unprocedural, the court held the Respondent could not be made to pay for a flawed process. Consequently the Claimant, who initiated the unlawful execution, was ordered to cater for the auctioneer's costs.

p. 6
03

Whether the failure to award interest in the judgment is an error apparent on the face of the record warranting review

Holding

Although award of interest is discretionary, where a decree is silent on interest section 26(2) of the Civil Procedure Act deems interest at court rates from judgment to payment; the Deputy Registrar was directed to include accrued interest in the decree

Reasoning

Relying on the Court of Appeal in Kenya Planters Cooperative Union v Interchem, the court held interest is discretionary but where the decree is silent, section 26(2) applies, yielding interest at court rates from judgment to payment in full. The Claimant had not unreasonably delayed in raising the issue, and the court could correct the omission without the rigorous process of review or appeal. Notably, the court did not formally allow review but directed the decree to carry interest from 17 January 2023 to 9 November 2023.

p. 8

Legal principles established

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  • A judgment, award, order or decree of the ELRC is enforceable in accordance with the rules made under the Civil Procedure Act, and no execution may issue without a duly drawn, approved and signed decree
  • Warrants of attachment issued before extraction and approval of a decree are issued irregularly and unprocedurally and must be set aside
  • A party who procures a flawed and unlawful execution process cannot visit the auctioneer's costs of that process on the judgment debtor
  • Where a decree is silent on interest, section 26(2) of the Civil Procedure Act applies and interest is payable at court rates from the date of judgment to payment in full

Court orders

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  1. 1.The Warrants of attachment dated 2nd November, 2023 are set aside
  2. 2.The Deputy Registrar is ordered to prepare a decree and include accrued interest on the decretal sum from 17th January, 2023 to 9th November, 2023 at the court rates
  3. 3.The Claimant shall cater for the costs of the Auctioneers for the process was flawed
  4. 4.Each party shall bear their own costs for these Applications
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act, 2011 (power to review its judgments) and Rules 31, 32 and 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016, read with section 13 of the Employment and Labour Relations Act

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, "Vittone v SOS Children’s Villages International (Cause 295 of 2019) [2024] KEELRC 1103 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1103/eng@2024-05-09

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