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ELRCAllowed· [2024] KEELRC 2794 (KLR)

Twaweza Apparel (EPZ) Limited v Mlala & another (Appeal E161 of 2024) [2024] KEELRC 2794 (KLR)

Employment and Labour Relations Court
14 November 2024
774 words in judgment
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The bottom line

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Kenya's Employment Court stopped execution against a company's goods pending appeal, ruling that ownership of attached property must be decided first.

What this practically means

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Executive summary

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The appellant, whose premises at Warehouse No. 1 to 10 on LR No.1043/111/Mazeras were proclaimed in attachment by Makini Auctioneers on behalf of the 1st respondent, moved the court by an application dated 2 August 2024 seeking stay of execution of the judgment delivered 15 February 2023, the decree, warrants of attachment issued 22 March 2024, and a proclamation served on 27 March 2024, pending appeal. The appeal challenges a ruling of 1 August 2024 dismissing the appellant's objection proceedings, in which it claimed a legal and equitable interest in the proclaimed goods on the basis that the decree in Mombasa CM ELRC E337 of 2019 was against the 2nd respondent and not the appellant. The 1st respondent opposed, arguing the appeal had not been served, that the application failed the Order 42 Rule 2 conditions of substantial loss and security, and proposing deposit of the decretal sum of Ksh.127,456.30 in a joint interest-earning account. The 2nd respondent, though served, did not attend. The court held that Order 42 Rules 2 and 6 did not apply because the appeal arises from objection proceedings in which title to the proclaimed goods must first be determined. It granted a conditional stay: execution of the judgment and ruling is stayed pending appeal, on condition that the appellant files and serves the Record of Appeal within 60 days from 1 August 2024 as required by Rule 15(2) of the ELRC (Procedure) Rules, 2024. Mention was fixed for 16 December 2024 for hearing directions. Delivered on 14 November 2024 by M. Mbarũ, Judge.

Key legal issues

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01

Applicability of Order 42 Rules 2 and 6 of the Civil Procedure Rules to an appeal from dismissal of objection proceedings

Holding

The rules do not apply; the appeal concerns title to the proclaimed goods, which must be determined first.

Reasoning

The court reasoned that this is not an ordinary appeal against a decree. It arises from objection proceedings challenging attachment of goods claimed to belong to a non-party. Since the appeal turns on who holds legal and equitable title to the proclaimed property, the stay conditions in Order 42 Rules 2 and 6 were held not to govern the application.

p. 2
02

Whether stay of execution pending appeal should issue

Holding

Stay granted but made conditional on filing and service of the Record of Appeal within 60 days from 1st August 2024.

Reasoning

The court accepted that the appeal targets the question of whether the appellant, not the 2nd respondent, was the proper judgment-debtor, and that execution would prejudice the appeal. However, it conditioned the stay on the appellant complying with Rule 15(2) of the ELRC (Procedure) Rules, 2024 by filing and serving the record of appeal within 60 days of the impugned ruling.

p. 2

Legal principles established

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  • Where an appeal follows objection proceedings, the legal and equitable title to proclaimed goods in execution must be addressed before determining who should satisfy the decree; Order 42 Rules 2 and 6 of the Civil Procedure Rules do not apply to such an appeal.

Court orders

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  1. 1.Pending the hearing of the appeal, an order of stay of execution of the judgment and ruling delivered on 15 February 2023 and 1st August 2024 respectively is issued
  2. 2.The appellant is to file and serve the Record of Appeal within 60 days from 1st August 2024, in compliance with Rule 15(2) of the ELRC (Procedure) Rules, 2024
  3. 3.Mention on 16 December 2024 for taking hearing directions

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 2
  • Civil Procedure RulesOrder 42 Rule 6
  • Employment and Labour Relations Court (Procedure) Rules, 2024Rule 15(2)
On appeal from
Mombasa CM ELRC
E337 of 2019 (also referred to as No.331 of 2019)
Jurisdiction invoked
Appellate jurisdiction over objection-proceedings ruling from the subordinate ELRC registry; stay pending appeal under Order 42 of the Civil Procedure Rules (held inapplicable on these facts) and Rule 15(2) of the ELRC (Procedure) Rules, 2024

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, "Twaweza Apparel (EPZ) Limited v Mlala & another (Appeal E161 of 2024) [2024] KEELRC 2794 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2794/eng@2024-11-14

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