Hellen Waseka v Middle East Bank Kenya Limited [2021] KEELRC 1411 (KLR)
The bottom line
#A Kenyan court cancelled bank attachment warrants obtained in breach of an existing stay order, confirming the bank's compliance with stay conditions and extending protection pending appeals.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there should be stay of execution of the warrants of attachment issued on 28th/29th January 2021 and whether the same should be declared null and void
- 2.Whether the stay of execution issued on 30th April 2019 is still valid and in force
- 3.In the alternative, whether a stay of execution should be granted pending hearing of Civil Appeal No.36 of 2019 and Civil Appeal No.E236 of 2020
- 4.Who should pay costs
Key legal issues
#Compliance with conditions of stay of execution granted on 30th April 2019
The respondent substantially complied by depositing the decretal sum of Ksh.12,180,000 into an interest-earning account in the joint names of counsel within 58 days; the claimant's objection as to which bank the account was opened in was an extraneous matter outside the court's order
The stay order required deposit of the decretal sum in an interest-earning account in the joint names of counsel on record within 60 days. The deposit was made on 27th June 2019, within 58 days. The court found no condition specified which bank the account was to be opened at; any conflict-of-interest concern should have been raised before or immediately after the ruling, not used to defeat compliance.
Procedural regularity of the warrants of attachment under Order 22 Rule 18 and Rule 32 ELRC Procedure Rules
The warrants of attachment were irregular, null and void ab initio because the claimant failed to issue a notice to show cause as required where execution is sought more than one year after the decree
The decree was issued on 22nd January 2019 and execution by attachment was levied in January 2021, more than one year later. Order 22 Rule 18, read with Rule 32 of the ELRC (Procedure) Rules, 2016, required a notice to show cause before execution. This procedure was not invoked, and execution also ran contrary to the subsisting stay orders.
Continuation in force of the stay orders of 30th April 2019
The stay orders of 30th April 2019 remain valid and in force pending hearing and determination of the appeals, and were extended for good measure to cover Civil Appeal No.E236 of 2020
The conditions attached to the stay had been satisfied and no appeal was contested. To allow execution would negate the very orders granting stay and destroy the substratum of the appeals. The court extended the stay to cover both pending appeals to ensure full determination of all matters before the Court of Appeal.
Legal principles established
#- Where an application for execution is made more than one year after the date of the decree, the court must first issue a notice to show cause under Order 22 Rule 18 before issuing warrants of attachment
- Warrants of attachment obtained in breach of subsisting stay orders and without compliance with Order 22 Rule 18 are irregular, null and void ab initio
Court orders
#- 1.Warrants of Attachment issued on 28th January, 2021 declared irregular, null and void
- 2.Orders of 30th April 2019 to remain in force pending hearing and determination of Civil Appeal No.36 of 2019 and Civil Appeal No.E236 of 2020
- 3.The claimant shall pay costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 22 Rule 18 of the Civil Procedure Rules and Rule 32 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Relief refused
#Alternative fresh stay of execution pending the appeals (superseded by affirming the existing stay orders)
The court found the existing stay orders of 30th April 2019 remained valid and sufficient, extending them to cover both pending appeals rather than granting a new stay
Costs
The claimant shall pay costs of the application
Quotable passages
#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, the court finds merit in the application dated 1st February, 2021 and the following orders are hereby issued;
Warrant of Attachment issued on 28th January, 2021 are declared irregular, null and void;
Orders of 30th April, 2019 herein remain in force pending hearing and determination of Civil Appeal No.36 of 2019 and Civil Appeal No.E236 of 2020; and
To proceed and obtain warrants of attachment on the face of the respondent secured the orders issued on 30 th April, 2019 was to engage in rush practice and the Warrants of Attachment issued on 29 th January, 2021 are irregular, null and void ab initio.
There was no set condition with regard to which bank the account was to be opened. The court reading of the entire ruling delivered on 30 th April, 2019, such an issue never arose.
Issues in the judgment
#The judgment gives inconsistent dates for the warrants of attachment, referring variously to 26th, 28th and 29th January 2021
Inconsistent date for the grant of the stay order, referred to as both 20th April 2019 and 30th April 2019
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hellen Waseka v Middle East Bank Kenya Limited [2021] KEELRC 1411 (KLR)", Case Analysis (2021). Application dated 1st February 2021 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1411/eng@2021-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.