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ELRCPartially AllowedNot stated in the extract (ELRC cause; ruling on application dated 1st November 2021)

Agnes Muthoni & 34 others v Kenya Medical Research Institute (KEMRI); Union of National Research and Allied Institutes Staff of Kenya (UNRISK)(Interested Party) [2022] KEELRC 349 (KLR)

Employment and Labour Relations Court
10 March 2022
2,248 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This ruling by M. Mbaru, J of the Employment and Labour Relations Court at Nairobi, delivered on 10th March 2022, dealt with Order (6) of the claimants' Notice of Motion dated 1st November 2021, by which they sought leave to execute for unpaid basic salaries from 15th June 2015 to 18th October 2021 and future gross salaries. By a prior ruling of 10th December 2021 the court had found the respondent's Acting Director General guilty of contempt of orders issued on 14th October 2021, with sentencing in abeyance. The claimants argued the December 2021 ruling allowed execution for the sums due, tabulated by the respondent at Kshs.158,610,708 less Kshs.843,604.80 already paid. The Interested Party supported them. The respondent countered that the application was spent, that execution required compliance with Order 22 Rules 6, 7 and 13 of the Civil Procedure Rules via an extracted decree containing the sums due, and that variances related only to statutory deductions. The court held that without a decree or order quantifying the sums, execution would amount to nothing, but criticised the respondent's over eleven years of non-compliance, partial payment, and contradictory budgetary figures. It directed the respondent to tabulate back pay for 16th July 2015 to 16th January 2022, including basic and gross pay, within 7 days, failing which the claimants' own tabulation would be adopted as the judgment sum and they would be at liberty to execute. Mention was set for 24th March 2022. No costs order was made.

Questions the Court framed

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

  1. 1.Whether Order (6) of the Notice of Motion dated 1st November 2021 remained alive, seeking leave to execute for back pay and future salaries, or was spent having been addressed in the ruling of 10th December 2021
  2. 2.Whether the claimants could proceed to execution without an extracted decree setting out the sums due, in accordance with Order 22 Rules 6 and 7 of the Civil Procedure Rules
  3. 3.How the back pay due to the claimants should be ascertained and tabulated for purposes of the decree

Key legal issues

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01

Whether execution could issue without an extracted decree

Holding

No. Execution procedures under Order 22 Rules 6 and 7 presuppose a decree setting out the amounts due; without one, execution would be futile.

Reasoning

The court accepted the respondent's submission that Order 22 rule 6 requires a decree-holder to apply to the court which passed the decree, and Order 22 rule 7 sets out elaborate particulars for an execution application, including the amount due. Since the judgment contained no order quantifying the amounts due, the proper course was first to ascertain the back pay through a directed tabulation, after which a decree would issue and execution could follow.

p. 3
02

Whether the respondent's conduct justified the orders sought

Holding

Yes in part. The respondent had knowledge of the judgment since May 2010, paid only Kshs. 843,604.80, and gave contradictory figures on budgetary provision, so the court directed tabulation with consequences for non-compliance.

Reasoning

The court found the respondent had failed, refused and neglected to pay back pay in full despite awareness of the judgment since 2010, had given contradictory budgetary figures, and had only partially complied. Contempt sentencing of the Acting Director General remained in abeyance. To prevent frustration of the judgment, the court set a 7-day tabulation timeline with self-executing consequences on default.

p. 4

Legal principles established

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  • Execution proceedings cannot proceed without a decree or order of the court setting out the amounts subject to enforcement
  • Where the judgment-debtor fails to tabulate the decretal dues within the period directed, the decree-holder's own tabulation may be adopted by the court as the judgment sum

Court orders

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  1. 1.The tabulation of back pay due to the claimants shall consist of dues owing and unpaid from 16th July, 2015 to 16th January, 2022
  2. 2.The dues owing and unpaid shall include the basic pay and total gross pay
  3. 3.The respondent to address the tabulation within the next 7 days
  4. 4.Upon lapse or failure to comply, the claimants shall apply their own rates and figures in tabulating back pay due, which shall be adopted by the court as the judgment sum
  5. 5.Once the tabulation takes effect, the claimants shall be at liberty to proceed and execute the judgment award
  6. 6.Mention on 24th March 2022 for confirmation and further directions

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules; application on record in the underlying employment cause (Article 162(2) jurisdiction implied by forum, not expressly cited)

Relief refused

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Direct leave to execute for the specific sum of Kshs. 158,610,708 (or variant figures)

The exact sums due were not verifiable and no decree had been extracted; the court instead directed a tabulation process to ascertain the decretal amount before execution

p. 4

Costs

No costs order made in the ruling

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.

without a Decree or an Order of the court setting out the amounts subject for enforcement, execution proceedings would amount to nothing.
p. 3requirement of a decree before execution
a. The tabulation of back pay due to the claimants shall consist of dues owing and unpaid from 16 th July, 2015 to 16th January, 2022;
p. 4final orders - scope of tabulation
the claimants shall proceed and apply own rates and figures in tabulation of back pay due and owing and which shall be adopted by the court as the judgement sum;
p. 4final orders - consequence of non-compliance
Once (d) above takes effect, the claimants shall be at liberty to proceed and execute the judgement award;
p. 4final orders - leave to execute

Issues in the judgment

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minor

The Acting Director General is named inconsistently as 'Prof. Samuel Muriuki' in the application and 'Prof. Samuel Kariuki' in the court's ruling of 10th December 2021

minor

The sums claimed are stated inconsistently (Kshs.158,610,700; Kshs.158,610,708; Kshs.158,610,706)

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, "Agnes Muthoni & 34 others v Kenya Medical Research Institute (KEMRI); Union of National Research and Allied Institutes Staff of Kenya (UNRISK)(Interested Party) [2022] KEELRC 349 (KLR)", Case Analysis (2022). Not stated in the extract (ELRC cause; ruling on application dated 1st November 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/349/eng@2022-03-10

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