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ELRCPartially AllowedNot stated in the judgment (Notice of Motion dated 1st February, 2021)

Hellen Waseka v Middle East Bank Kenya Limited [2021] KEELRC 1466 (KLR)

Employment and Labour Relations Court
23 March 2021
1,978 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court nullified attachment warrants obtained without the required notice, confirming that complying with stay conditions protects judgment debtors from execution.

What this practically means

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Executive summary

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Middle East Bank Kenya Limited, the judgment debtor described in the judgment as the respondent, moved the Employment and Labour Relations Court by notice of motion dated 1st February, 2021 under Order 22 Rule 18 of the Civil Procedure Rules and Rule 32 of the ELRC (Procedure) Rules, seeking to set aside warrants of attachment issued on 28th January, 2021, affirmation that the stay of execution granted on 30th April, 2019 remained in force, and in the alternative a fresh stay pending Civil Appeal No.36 of 2019 and Civil Appeal No.E236 of 2020 before the Court of Appeal. The claimant opposed, contending that the stay lapsed because the respondent opened the security deposit account at its own bank despite a conflict-of-interest objection, and outside the 60-day window. M. Mbaru J framed four issues and held that the respondent had complied with the stay conditions: the sum of Ksh.12,180,000 was deposited on 27th June, 2019, within 58 days, in an interest-earning account in the joint names of both counsel; the order of 30th April, 2019 never specified the bank. More decisively, since the decree was issued on 22nd January, 2019, execution in January 2021 required a notice to show cause under Order 22 Rule 18, which was never issued. The warrants were declared irregular, null and void ab initio; the stay orders of 30th April, 2019 were affirmed and extended to both pending appeals; and the claimant was ordered to pay costs of the application.

Questions the Court framed

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

  1. 1.Whether there should be stay of execution of the warrants of attachment issued on 28th/29th January, 2021 and the same declared null and void
  2. 2.Whether the stay of execution issued on 30th April, 2019 is still valid and in force
  3. 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. 4.Who should pay costs

Key legal issues

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01

Whether the respondent complied with the conditions of the stay order of 30th April, 2019

Holding

Yes. The court had not specified which bank should hold the account; the respondent deposited Ksh.12,180,000 in an interest-earning account in the joint names of both counsel within 58 days, satisfying the condition.

Reasoning

The stay order required deposit of the entire decretal sum in a joint interest-earning account within 60 days. The respondent opened account No.1003138000287 in the joint names of Esmail & Esmail and Ameli, Inyangu & Partners Advocates and deposited the sum on 27th June, 2019, within 58 days. The court found no condition dictated which bank was to be used, so the claimant's conflict-of-interest objection could not invalidate compliance.

p. 2
02

Whether the warrants of attachment of 28th January, 2021 were validly obtained

Holding

No. They were issued without the notice to show cause required by Order 22 Rule 18 since the decree was issued on 22nd January, 2019, more than one year before execution, and were therefore null and void ab initio.

Reasoning

The decree was dated 22nd January, 2019, so execution in January 2021 was more than one year after the decree, triggering Order 22 Rule 18's notice-to-show-cause requirement. The claimant also purported to justify execution on the taxation ruling of 11th December, 2020, which was outside the orders of 30th April, 2019. Obtaining warrants while the respondent had secured the stay orders was a rush practice.

p. 3
03

Whether the stay orders of 30th April, 2019 remained valid and in force

Holding

Yes. The conditions had been complied with and the orders remain in force pending the hearing and determination of both appeals before the Court of Appeal.

Reasoning

Since the respondent had satisfied the deposit condition and the warrants were irregularly obtained, the stay orders had not lapsed. The court found it imperative, to ensure full determination of all matters before the Court of Appeal, that the stay extend to both Civil Appeal No.36 of 2019 and Civil Appeal No.E236 of 2020.

p. 3

Legal principles established

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  • Before obtaining warrants of attachment more than one year after the date of the decree, the decree-holder must comply with Order 22 Rule 18 and obtain and serve a notice to show cause; execution without that notice is irregular and null and void.
  • A party who complies substantially and with haste with the terms of a stay order cannot have execution issue against him on the basis of conditions imported outside the order; objections such as conflict of interest should have been raised before the court or immediately after the ruling.

Court orders

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  1. 1.Warrant of Attachment issued on 28th January, 2021 declared irregular, null and void
  2. 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. 3.The claimant to pay costs of the application

The bench

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

majority

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

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Alternative prayer for a fresh stay of execution pending the appeals

The court found the existing stay orders of 30th April, 2019 remained valid and in force, so no fresh stay was necessary; those orders were extended in effect to cover both pending appeals.

p. 3

Costs

The claimant shall pay costs of the application

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.

Warrants of Attachment issued on 29 th January, 2021 are irregular, null and void ab initio.
p. 3Invalidity of the warrants of attachment
Before obtaining the Warrants of Attachment on 28 th January, 2021, Order 22 Rule 18 applied. The motions of the set procedures ought to have been invoked as held in Santowels Limited v Stanbic Bank Kenya Ltd [2020] eKLR.
p. 3Mandatory notice to show cause before execution after one year
Where the claimant was keen to secure and address any conflict of interest, such matter ought to have been addressed before the court rendered ruling or immediately soon thereafter taking into account the 60 days issued with regard to the security deposit.
p. 3Objections to compliance with stay conditions must be raised timeously
(a) Warrant of Attachment issued on 28th January, 2021 are declared irregular, null and void; (b) 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 (c) The claimant shall pay costs herein.
p. 3Final orders/disposition

Issues in the judgment

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minor

The judgment inconsistently dates the warrants of attachment, variously as 26th, 28th and 29th January, 2021, and in the final orders declares warrants 'issued on 28th January, 2021' irregular while the disposition passage earlier refers to warrants of '29 th January, 2021'.

minor

The application is described as filed by 'the respondent' (Middle East Bank Kenya Limited) while the opposing party is 'the claimant', an inverted role labelling carried throughout the judgment; also the judgment states stay was 'granted on 30th April, 2019' in one passage and '20 th April, 2019' in the application's prayer 4.

material

The claimant's name does not appear anywhere in the judgment; the parties are referred to only as 'the claimant' and 'the respondent'.

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, "Hellen Waseka v Middle East Bank Kenya Limited [2021] KEELRC 1466 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of Motion dated 1st February, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1466/eng@2021-03-23

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