Munyite v Harambee Sacco Society (Cause 671 of 2019) [2025] KEELRC 2459 (KLR)
The bottom line
#A Kenyan court recalled irregularly issued attachment warrants but made the employer pay auctioneer fees because paying the judgment debt mid-dispute regularised the process.
What this practically means
#Executive summary
#Key legal issues
#Regularity of execution without an approved draft decree
Execution was irregular because no draft decree was submitted to the Respondent for approval as required by Order 21 Rule 8(2) of the Civil Procedure Rules and Rule 72(4) of the ELRC (Procedure) Rules 2024.
The record showed only the Claimant's letter of 3rd July 2024 asking the Deputy Registrar for a decree and a signed and sealed decree of 9th September 2024. Order 22 Rule 6 requires application to the Court that passed the decree for execution of a decree signed per the prescribed procedure. The requirement that all parties scrutinise a draft decree is not a hollow technicality; a party not called upon to approve a draft decree may impeach execution based on such a decree.
Execution before taxation of party-and-party costs
Section 94 of the Civil Procedure Act requires the Court's order before executing a decree before costs are ascertained by taxation; the Claimant neither obtained such leave nor waived taxation, so the execution was not legally valid.
The Claimant argued that Section 94 and Order 21 Rule 8(2) use the permissive 'may'. The Court held the permissive language in Order 21 Rule 8(2) concerns only which party may originate a draft decree, while the 'may' in Section 94 concerns the Court's discretion to allow execution before taxation. Following Mercedes Sanchez Rau Tussel v Samken Ltd, the Court reasoned that the decree is the formal expression of the whole judgment, so executing only part of it requires the Court's permission.
Effect of the judgment-debtor's subsequent payment of the decretal sum
Although the Respondent was initially within its rights to challenge the irregular execution, it validated and regularised the proceedings by paying the judgment sum and interest on 16th October 2024, rendering the application spent save for recall of the warrants and the Auctioneer's fees.
The Court confirmed, on the record and by admission of both counsel, that the decretal sum and interest were paid during the pendency of the application. The warrants now served no useful purpose and were recalled. Having validated otherwise irregular execution proceedings, the Respondent remained obligated to pay the Auctioneer's lawful charges, to be agreed or taxed.
Legal principles established
#- A statutory procedure for a decree's preparation and approval must be strictly complied with; skipping it renders execution proceedings irregular and impeachable.
- Execution of a decree before taxation of costs requires the Court's leave under Section 94 of the Civil Procedure Act.
Court orders
#- 1.The Warrant of Attachment and Warrant of Sale issued on 3rd October, 2024 are recalled
- 2.The Proclamation of the Respondent/Applicant's movable properties dated 4th October, 2024 is lifted
- 3.The Respondent/Applicant shall pay the Auctioneer's lawful fees, to be agreed and paid within 30 days of the Ruling or taxed as by law provided
- 4.Each party will bear its own costs of the application
- Jurisdiction invoked
- Section 13 of the Employment and Labour Relations Act; Article 162(2)(a) of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munyite v Harambee Sacco Society (Cause 671 of 2019) [2025] KEELRC 2459 (KLR)", Case Analysis (2025). Cause No. 669 of 2019 (Consolidated with Cause No. 670 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2459/eng@2025-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.