Vittone v SOS Children’s Villages International (Cause 295 of 2019) [2024] KEELRC 1103 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Warrants of Attachment dated 2 November 2023 and the Proclamation Notice dated 6 November 2023 were procured regularly and procedurally
- 2.Whether the Respondent is liable to pay the Auctioneers' fees for the flawed attachment process
- 3.Whether the Claimant's application for review of the judgment of 17 January 2023 to include interest on the decretal sum is merited, i.e. whether the failure to award interest was an error apparent on the face of the record or a matter within the court's discretion
Key legal issues
#Legality of warrants of attachment issued in the absence of an extracted, approved and signed decree
The warrants of attachment dated 2 November 2023 were issued irregularly and unprocedurally and were set aside to the extent that no decree was in place
Section 13 of the Employment and Labour Relations Act requires enforcement in accordance with Civil Procedure Act rules; Rules 31 and 32 of the ELRC Rules and Orders 21 rules 7 and 8 of the Civil Procedure Rules require a decree drawn in accordance with the judgment and prepared through a draft-approval process. Since no decree had been extracted and served before the warrants issued, the execution process was flawed and was set aside, though the decretal sums were already settled.
Liability for auctioneer fees arising from an unlawful attachment
The Respondent is not liable for the auctioneer fees of the flawed process; the Claimant shall bear the auctioneer's costs
Having found the warrants irregular and the execution process illegal and unprocedural, the court held the Respondent could not be made to pay for a flawed process. Consequently the Claimant, who initiated the unlawful execution, was ordered to cater for the auctioneer's costs.
Whether the failure to award interest in the judgment is an error apparent on the face of the record warranting review
Although award of interest is discretionary, where a decree is silent on interest section 26(2) of the Civil Procedure Act deems interest at court rates from judgment to payment; the Deputy Registrar was directed to include accrued interest in the decree
Relying on the Court of Appeal in Kenya Planters Cooperative Union v Interchem, the court held interest is discretionary but where the decree is silent, section 26(2) applies, yielding interest at court rates from judgment to payment in full. The Claimant had not unreasonably delayed in raising the issue, and the court could correct the omission without the rigorous process of review or appeal. Notably, the court did not formally allow review but directed the decree to carry interest from 17 January 2023 to 9 November 2023.
Legal principles established
#- A judgment, award, order or decree of the ELRC is enforceable in accordance with the rules made under the Civil Procedure Act, and no execution may issue without a duly drawn, approved and signed decree
- Warrants of attachment issued before extraction and approval of a decree are issued irregularly and unprocedurally and must be set aside
- A party who procures a flawed and unlawful execution process cannot visit the auctioneer's costs of that process on the judgment debtor
- Where a decree is silent on interest, section 26(2) of the Civil Procedure Act applies and interest is payable at court rates from the date of judgment to payment in full
Court orders
#- 1.The Warrants of attachment dated 2nd November, 2023 are set aside
- 2.The Deputy Registrar is ordered to prepare a decree and include accrued interest on the decretal sum from 17th January, 2023 to 9th November, 2023 at the court rates
- 3.The Claimant shall cater for the costs of the Auctioneers for the process was flawed
- 4.Each party shall bear their own costs for these Applications
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 16 of the Employment and Labour Relations Court Act, 2011 (power to review its judgments) and Rules 31, 32 and 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016, read with section 13 of the Employment and Labour Relations Act
Relief refused
#Respondent's prayer to declare the Warrants, Proclamation Notice and execution wholly null and void and to absolve it of all auctioneer and court collection fees
The court found the warrants irregular only to the extent that no decree was in place, and held the Respondent liable for no auctioneer costs but the Claimant to bear auctioneer costs; the amounts in the disputed warrants were already settled
Claimant's prayer for review of the judgment by granting interest as a matter of review of an error on the face of the record
The court treated the silence on interest as correctable without rigorous review, directing instead that the decree include interest at court rates; it did not grant the review as sought
Costs
Each party shall bear their own costs for these Applications; the Claimant shall cater for the costs of the Auctioneers for the process was flawed
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.
The Warrants of attachment dated 2ndNovember, 2023 are set aside.
The Deputy registrar herein is ordered to prepare a decree and include accrued interest on the decretal sum from 17th January,2023 to 9th November,2023 at the court rates.
The Claimant shall cater for the costs of the Auctioneers for the process was flawed.
Each party shall bear their own costs for these Applications.
In the circumstances I find that the said warrants of attachment were issued irregularly and unprocedurally and should be set aside to the extent only of there being no decree in place.
even though the court has discretion to award interest or not the same court is guided by the law in such that where the court does not mention the issue of interest Rule 26(2) as seen above applies. That it goes without saying that interest will be at the court rates from the date of Judgment to payment in full.
Issues in the judgment
#The judgment mislabels the ELRC Court Act as 'Labour Relations Act' when describing the review power, and states 'Rule 26(2)' when referring to section 26(2) of the Civil Procedure Act
The court states the Deputy Registrar was mistaken in ordering the warrants to be corrected to remove interests, yet simultaneously finds the warrants irregular for absence of a decree
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vittone v SOS Children’s Villages International (Cause 295 of 2019) [2024] KEELRC 1103 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1103/eng@2024-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.