Kenya Shoe & Leather Workers Union v Modern Soap Factory (Cause 615 of 2014) [2023] KEELRC 1686 (KLR)
The bottom line
#A Kenyan employment court stopped the auction of a company's property because the winner tried to seize assets before the formal decree was even issued.
What this practically means
#Executive summary
#Key legal issues
#Whether submissions filed without a replying affidavit amount to a response to an application
They do not; the application stood unopposed as the claimant filed no replying affidavit as directed and as required by Rule 17(9)
Rule 17(9) of the ELRC (Procedure) Rules 2016 requires a party wishing to respond to an application to file grounds of opposition verified by affidavit. The claimant filed only written submissions despite a specific direction to file a replying affidavit. Relying on Daniel Torotich Arap Moi v Mwangi Stephen Murithi and KUDHEIHA v North Beach Hotel, the court held submissions are not evidence and cannot anchor a response, leaving the application unopposed.
Whether execution taken out before a decree is drawn and issued is valid
It is premature and irregular; only a decree drawn, sealed and issued by the Registrar is capable of execution
Under rules 31 and 32 of the ELRC (Procedure) Rules 2016 and order 22 rule 6 of the Civil Procedure Rules 2010, what is executed is the decree as drawn, sealed and issued by the Registrar, not the judgment. On the record there was no decree drawn and issued; only an application for execution and warrants of attachment and sale. Execution taken before issuance of a decree is therefore premature and an irregularity.
Whether stay of execution pending appeal should be granted
Yes; substantial loss was not rebutted, the notice of appeal was validly filed, and the deposit of the judgment sum provided adequate security
A notice of appeal had been filed within 14 days of the judgment, deemed an appeal under order 42 rule 6(4). The judgment sum had already been deposited in court, substantially securing the claimant's members' interests. The unopposing claimant did not demonstrate the members could refund the decretal sum if the appeal succeeded, the evidential burden shifting to it under the authorities cited on stay.
Legal principles established
#- Execution cannot issue until the decree is drawn, sealed and issued by the Registrar; execution before issuance of a decree is premature and irregular
- Auctioneer's charges arising from a premature and irregular attachment are payable by the party who instructed the Auctioneer
- Written submissions cannot substitute for a replying affidavit as a response to an application
Court orders
#- 1.A stay of execution of the court's decree pending hearing and determination of the intended appeal
- 2.The sum of ksh. 199,530 already deposited in court to remain so deposited pending hearing and determination of the intended appeal
- 3.The claimant/respondent to pay the Auctioneer's charges, if any
- 4.Each party to bear its own costs of the application
- Jurisdiction invoked
- Employment and Labour Relations Court (Procedure) Rules 2016, rules 31 and 32; order 42 rule 6 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Shoe & Leather Workers Union v Modern Soap Factory (Cause 615 of 2014) [2023] KEELRC 1686 (KLR)", Case Analysis (2023). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1686/eng@2023-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.