Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 669 of 2019 (consolidated with Cause No. 670 of 2019)· [2025] KEELRC 2460 (KLR)

Kitheka & another v Harambee Sacco Society (Cause 669 & 670 of 2019 (Consolidated)) [2025] KEELRC 2460 (KLR)

Employment and Labour Relations Court
19 September 2025
ANAgnes Kitiku Nzei
2,861 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Kenyan court invalidated an execution against Harambee Sacco because the winners skipped mandatory decree-approval steps, but the Sacco's payment of the debt meant the warrants were simply recalled.

What this practically means

#

Executive summary

#
This ruling by the Employment and Labour Relations Court at Nairobi, delivered by Agnes Kitiku Nzei, J on 19th September 2025, determines a Notice of Motion dated 4th October 2024 by Harambee Sacco Society Ltd, the judgment-debtor in consolidated Causes 669 and 670 of 2019, in which a consolidated judgment was entered for the Claimants on 27th May 2024 with 50% costs. After the 30-day stay lapsed, the Claimants obtained a decree and warrants of attachment and sale issued on 3rd October 2024 to Betabase Auctioneers, who proclaimed attachment of the Respondent's movable property. The Respondent sought stay, setting aside of the warrants and proclamation, contending that no draft decree had been submitted for its approval, that costs had not been taxed, and that no leave to execute before taxation had been obtained. The Claimants countered that the applicable provisions were permissive, that due process was followed, and that the application was an abuse of process. During the pendency of the application, on 16th October 2024, the Respondent paid the decretal sum and interest. The Court framed four issues. It held that Order 22 Rule 6 is mandatory, that approval of a draft decree by all parties is no procedural technicality, and that execution before taxation required a Court order under Section 94 of the Civil Procedure Act; the execution was therefore irregular. However, by paying the decretal sum, the Respondent validated and regularised the proceedings, rendering the application spent. The Court recalled the warrants, lifted the proclamation, ordered the Respondent to pay the Auctioneer's lawful fees within 30 days or as taxed, and directed each party to bear its own costs of the application.

Key legal issues

#
01

Regularity of execution proceedings taken without a draft decree approved by the other party and without leave to execute before taxation

Holding

The execution proceedings were irregular: no draft decree was submitted for approval and no leave to execute before taxation was obtained; Order 22 Rule 6 is mandatory and the 'may' in Order 21 Rule 8(2) concerns only which party originates the draft.

Reasoning

The Court traced the scheme of Order 21 Rule 8(2), Rule 72(4) of the ELRC (Procedure) Rules 2024 and Order 22 Rule 6, holding the approval of a draft decree by all parties is not a hollow requirement, and Section 94 requires a Court order for execution before costs are taxed. The Claimants neither obtained leave nor waived taxation, so execution was invalid.

p. 6
02

Effect of the Judgment-debtor's payment of the decretal sum during the pendency of the application

Holding

By paying the judgment sum and interest on 16th October 2024, the Respondent regularised the otherwise irregular execution; the warrants now serve no purpose and should be recalled, but the Respondent must pay the Auctioneer's lawful fees.

Reasoning

Though initially entitled to challenge the irregular execution, the Respondent validated and regularised the proceedings by satisfying the decree. The warrants being spent, they were recalled; equity required the Respondent, whose validation occasioned the auctioneer's charges, to bear those lawful fees.

p. 6

Legal principles established

#
  • Where a specific procedure is provided by law for addressing a grievance, that procedure must be strictly complied with; a decree must be drawn up and approved per Order 21 Rule 8(2) before execution, and execution before taxation of costs requires the Court's order under Section 94 of the Civil Procedure Act.

Court orders

#
  1. 1.The Warrant of Attachment and Warrant of Sale, both issued on 3rd October, 2024, are hereby re-called
  2. 2.Proclamation of the Respondent/Applicant's movable properties dated 4th October, 2024 is hereby lifted
  3. 3.The Respondent/Applicant shall pay the Auctioneer's lawful fees, to be agreed and paid within 30 days of this Ruling or taxed as by law provided
  4. 4.Each party will bear its own costs of the application

Authorities

#

Legislation

  • Constitution of Kenya 2010Article 162(2)(a)
  • Employment and Labour Relations Court ActSection 13
  • Civil Procedure ActSection 94
  • Civil Procedure Rules 2010Order 21 Rule 8(2)
  • Civil Procedure Rules 2010Order 22 Rule 6
  • Employment and Labour Relations Court (Procedure) Rules 2024Rule 72(4)
  • Auctioneers Act

Cases cited (2)

  • Gacau Kariuki & Co. Advocates – vs – Allan Mbugua Ng'ang'a
    [2012] eKLR
  • Mercedes Sanchez Rau Tussel – vs – Samken Ltd, Abercrobie & 2 Others
    [2002] eKLR
Jurisdiction invoked
Section 13 of the Employment and Labour Relations Court 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, "Kitheka & another v Harambee Sacco Society (Cause 669 & 670 of 2019 (Consolidated)) [2025] KEELRC 2460 (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/2025/2460/eng@2025-09-19

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