Vittone v SOS Children’s Villages International (Cause 295 of 2019) [2024] KEELRC 1103 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Legality of warrants of attachment issued in the absence of an extracted, approved and signed decree
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
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.
Liability for auctioneer fees arising from an unlawful attachment
The Respondent is not liable for the auctioneer fees of the flawed process; the Claimant shall bear the auctioneer's costs
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.
Whether the failure to award interest in the judgment is an error apparent on the face of the record warranting review
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
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.
Legal principles established
#- 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
#- 1.The Warrants of attachment dated 2nd November, 2023 are set aside
- 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.The Claimant shall cater for the costs of the Auctioneers for the process was flawed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.