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ELRCPartially AllowedELRC Cause No.257 of 2015

Samuel Mutuku Mutunga v Steel Makers Limited; Joseph Kahoro Mundia t/a Upstate Kenya Auctioneers (Auctioneer) (Cause 257 of 2015) [2020] KEELRC 1930 (KLR)

Employment and Labour Relations Court
15 December 2020
1,383 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court quashed an auctioneer's attachment because it followed the wrong rules, but confirmed the debt still had to be paid through proper execution.

What this practically means

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Executive summary

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In this employment cause the respondent, Steel Makers Limited, applied for stay of execution of the judgment and decree (by which the claimant was awarded Ksh.339,570 and costs) and for quashing of the auctioneers' proclamation of its moveable properties effected on 5th October, 2020 at its Athi River premises. The respondent complained that the auctioneer only affixed a proclamation outside the premises without accessing them, did not verify the availability or condition of the goods, and relied on a schedule replicating proclamations in other proceedings - Nairobi ELRC No.262 of 2015, BPRT 873 of 2018 (under appeal in ELC Nairobi Civil Appeal No.54 of 2019) - including a motor vehicle, KAT 848T, not available for further attachment. The claimant maintained the respondent was given the mandatory 7 days' notice and that the other suits were unrelated. The auctioneer's affidavit revealed that the warrants he served were from ELRC No.262 of 2015, a different suit. The court held that the execution process was irregular and unlawful and contrary to due process, and could not be sanctioned, although the claimant remained justified in executing the decree. The application was allowed: stay of execution was granted, the process commenced on 5th October, 2020 was quashed, the claimant was at liberty to commence fresh execution in accordance with the law, and each party was ordered to bear its own costs. Delivered at Nairobi on 15th December, 2020 by M. Mbaru, Judge.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the proclamation and attachment of the respondent's goods by the auctioneers vide the notice dated 5th October, 2020 was lawful and in conformity with the Auctioneers Act, Rules and due process
  2. 2.Whether the respondent is entitled to stay of execution and to have the impugned attachment declared a nullity and quashed

Key legal issues

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01

Regularity of the auctioneer's proclamation and attachment

Holding

The attachment was irregular and unlawful because the warrants served related to a different suit (Nairobi ELRC No.262 of 2015), the proclaimed schedules were replicas of those in other suits (ELRC 262 of 2015, BPRT 873 of 2018/ELC Appeal 54 of 2019), and the statutory procedure under Rule 12 of the Auctioneers Rules was not followed

Reasoning

The auctioneer's own affidavit showed the warrants served were from a separate suit, and the schedules of proclaimed items replicated those in other proceedings. He did not access the premises or verify the goods. This contravened the Auctioneers Act and Rules and due process, so the court would not sanction it, though the decree-holder remains justified in executing through lawful process.

p. 3
02

Right of the decree-holder to execute

Holding

The claimant remains justified in executing the decree since the respondent is indebted, and only the mode of execution was faulted

Reasoning

The court distinguished the validity of the decree and the claimant's entitlement to execute from the irregularity of the attachment process. The claimant's instruction to execute was justified; only the defective process was quashed and fresh lawful execution permitted.

p. 3
03

Representation by new advocates post-judgment

Holding

Order 9 Rule 9 of the Civil Procedure Rules permits new advocates to come on record post-judgment with the consent of the outgoing advocates, and consent was on record

Reasoning

The application was post-judgment and the respondent was represented by new advocates. The court noted the consent filed allowing the new advocates to come on record, thereby regularising representation before determining the application.

p. 2

Legal principles established

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  • An auctioneer, upon receipt of a warrant of attachment or instructions, must inspect, value, prepare an inventory of the proclaimed goods and serve notice upon the judgment debtor in conformity with the Auctioneers Act and Rules (Rule 12)
  • An execution process undertaken contrary to the applicable rules is irregular, unlawful and contrary to due process and cannot be sanctioned by the court

Court orders

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  1. 1.Stay of execution granted to the respondent
  2. 2.The execution process commenced vide the notice dated 5th October, 2020 is quashed
  3. 3.The claimant shall commence a fresh process of execution in accordance with the law and the applicable rules
  4. 4.Each party shall meet own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original employment and labour relations jurisdiction of the ELRC in a cause filed in 2015

Relief refused

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Direction that the auctioneer levy a fresh attachment / police assistance to remove proclaimed goods

The court declined to sanction the irregular process and instead directed that fresh execution commence in accordance with the law; the claimant remains entitled to execute but through lawful process

p. 3

Costs

Each party shall meet own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, application dated 15th October, 2020 is found with merit and the respondent is allowed stay of execution and the process commenced vide notice dated 5 th October, 2020 is hereby quashed.
p. 3Final orders - stay of execution and quashing of irregular attachment
The claimant shall commence fresh process of execution in accordance with the law and the applicable rules. Each party shall meet own costs.
p. 3Final orders - fresh execution and costs
the process undertaken by the auctioneers to proclaim the respondents moveable properties is irregular and unlawful and contrary to the due process. Such cannot be sanctioned by the court.
p. 3Irregular execution contrary to Auctioneers Rules
under Rule 12, an auctioneer, upon receipt of the warrant of attachment or instructions is required to inspect value and prepare an inventory of the proclaimed good and serve notice upon the judgement debtor.
p. 2Auctioneer's statutory duties under Rule 12

Issues in the judgment

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minor

The application is described in the opening as dated 21st May, 2020 but the final orders refer to an application dated 15th October, 2020

minor

The date of judgment is inconsistently stated - 13th December, 2019 in the supporting affidavit versus 13th February, 2019 in the claimant's replying affidavit

minor

The decretal figure is stated as Ksh.339,570 while the auctioneer's warrants in ELRC No.262 of 2015 relate to Ksh.516,696, indicating warrants from a different suit

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, "Samuel Mutuku Mutunga v Steel Makers Limited; Joseph Kahoro Mundia t/a Upstate Kenya Auctioneers (Auctioneer) (Cause 257 of 2015) [2020] KEELRC 1930 (KLR)", Case Analysis (2020). ELRC Cause No.257 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1930/eng@2020-12-15

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