Automated Summary
Key Facts
In Kenya Shoe & Leather Workers Union v Modern Soap Factory, the Employment and Labour Relations Court in Mombasa ruled on an application for a stay of execution. The respondent sought to halt the claimant's execution of a judgment (delivered January 19, 2023) pending an appeal. The court found that the claimant had not taxed the costs, and no decree was drawn and endorsed by the Deputy Registrar, as required by Rule 31 of the Court's Procedure Rules. The respondent had deposited the judgment sum (Ksh. 199,550) in compliance with an interim order. The court noted the appeal was timely filed (within 14 days) and meritorious. Since the claimant did not oppose the application and failed to demonstrate that funds would be refundable if the appeal succeeded, the stay was granted. The ruling emphasizes that execution must follow a properly issued decree, and premature execution is unlawful.
Issues
- The court considered whether to grant a stay of execution of the judgment pending the respondent's appeal, as the respondent argued that proceeding with execution would render the appeal nugatory. The application cited Rule 31 and 32 of the Employment and Labour Relations Court (Procedure) Rules 2016 and Order 42 rule 6 of the Civil Procedure Rules, emphasizing the need for a valid decree before execution and the claimant's failure to tax awarded costs.
- The respondent sought to set aside the unlawful execution of the judgment and argued that any auctioneer's costs arising from the premature attachment should be borne by the claimant. The court granted this, ordering the claimant to pay the auctioneer's charges if any were incurred.
- The respondent alleged that the claimant executed the judgment without a decree being drawn, sealed, and issued by the Deputy Registrar as required by Rule 31 of the Employment and Labour Relations Court (Procedure) Rules 2016. The court examined the validity of the execution process, noting the absence of a properly issued decree on the record.
Holdings
- The judgment sum of Ksh. 199,530 deposited by the respondent remains in court until the appeal is resolved.
- The claimant was ordered to pay any Auctioneer's charges incurred as a result of the premature execution attempt.
- Each party was directed to bear their own costs related to the application.
- The court granted a stay of execution of its decree pending the hearing and determination of the respondent's intended appeal.
Remedies
- Each party will bear its own costs of the application.
- The sum of Ksh. 199,530 already deposited in court shall remain so pending the appeal.
- The court granted a stay of execution of this court's decree pending hearing and determination of the intended appeal.
- The claimant is ordered to pay the Auctioneer's charges, if any.
Legal Principles
The court held that execution of a decree cannot proceed until the decree is properly drawn, sealed, and issued by the Registrar (Deputy Registrar) in accordance with the Employment and Labour Relations Court (Procedure) Rules 2016 and Civil Procedure Rules. This principle was applied to invalidate the claimant's premature execution of the judgment and to grant a stay pending appeal.
Precedent Name
- Union of Domestic Hotels, Education Institutions and Hospital Workers [kudbeihai] -vs- North Beach Hotel [2015] eKLR
- Daniel Torotich Arap Moi -vs- Mwangi Stephen Murithi & another [2014] eKLR
Cited Statute
- Civil Procedure Rules 2010
- Employment and Labour Relations Court (Procedure) Rules 2016
Judge Name
Agnes Kitiku Nzei
Passage Text
- "if there is no other overwhelming hindrance, a stay ought to be granted so that an appeal if successful, may not be nugatory... the court has to see that the appeal if successful, is not nugatory."
- I find merit in the respondent's notice of motion... there will be a stay of execution of this court's decree pending hearing and determination of the intended appeal.
- It is clear from the foregoing provisions of this Court's Rules and the Civil Procedure Rules that execution cannot issue until the decree is drawn, sealed and issued by the Registrar (Deputy Registrar), as what is supposed to be executed is the decree as drawn, sealed and issued, but not the judgment delivered by the court.