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ELRCPartially AllowedNotice of Motion application dated 12.08.2024

Mule v HFC Limited; M/S Milan Auctioneers (Interested Party) (Cause 1145 of 2016) [2025] KEELRC 1323 (KLR)

Employment and Labour Relations Court
9 May 2025
1,415 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court stopped an auction and confirmed the employer had fully paid the judgment debt after deducting an agreed employee car loan.

What this practically means

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Executive summary

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The Respondent/Applicant (judgment-debtor) filed a Notice of Motion dated 12.08.2024 in the Employment and Labour Relations Court at Nairobi seeking to stay and set aside warrants of attachment issued on 02.08.2024 to Milan Auctioneers, and a declaration that it stood fully and finally discharged from all claims arising from the decree of 17.05.2019 and the ruling of 11.03.2024. The applicant contended that the claimant had been granted a car loan of Kshs 7,290,000 during employment, that upon judgment of Kshs 8,960,459.20 the applicant recovered Kshs 5,872,371 from the decretal sum, credited Kshs 680,345.94 to the claimant's account, and paid the taxed costs of Kshs 915,058, fully satisfying the decree — yet the claimant took out warrants for Kshs 11,539,550.17. The claimant/respondent opposed, arguing that set-off was never pleaded, that the applicant was bound by its pleadings, that a right of set-off does not arise automatically, and that any grievance should have been pursued by appeal or review. The Court, per Byram Ongaya, Principal Judge, held that although set-off was not pleaded, matters arising out of satisfaction of a decree are determinable by the Court which passed the decree, and the applicant was entitled to raise the issue by application. Correspondence between the advocates had agreed the loan amounts and the respondent did not deny owing the loan nor dispute the computation, so the decree was duly settled. Applying the doctrine of estoppel (Serah Njeri Mwobi v John Kimani Njoroge) and approbation and reprobation (Evans v Bartiam), the Court held the respondent bound by his acceptance of the loan deduction. The application was allowed: the warrants and all processes flowing therefrom were set aside, a declaration of full and final discharge was issued, with no 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 the warrants of attachment and sale issued on 02.08.2024 should be set aside and execution stayed
  2. 2.Whether the applicant, who did not plead set-off or counterclaim the car loan, may raise the issue of satisfaction of the decree by way of an application
  3. 3.Whether the applicant stands fully and finally discharged from all claims arising from the decree issued on 17.05.2019 and the ruling dated 11.03.2024

Key legal issues

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01

Whether the applicant was entitled to raise the issue of set-off of the car loan in satisfaction of the decree when it was not pleaded at trial

Holding

Yes — the issue of satisfaction of the decree is determinable by the Court which passed the decree in the suit subject of the decree, and the applicant was entitled to raise it by way of application

Reasoning

While parties are bound by their pleadings and set-off was not pleaded, the Court held that matters arising out of the satisfaction of a decree fall for determination by the Court which passed the decree in the suit subject to that decree. The applicant's advocates had corresponded with the respondent's advocates on the deduction of the car loan, the parties agreed on the accurate loan amounts, and the applicant paid out the balance of the decretal sum and the taxed costs. Raising satisfaction of the decree by application was therefore procedurally proper.

p. 3
02

Whether the decree was fully satisfied by set-off of the car loan and payment of the taxed costs

Holding

Yes — the parties' advocates agreed by correspondence on settling the decree by setting off the loan amount, the respondent did not deny owing the loan nor dispute the computation, and payment was made on the taxed costs

Reasoning

The Court found that correspondence between the parties' advocates agreed on the manner of settling the decree by setting off the loan amount. The respondent did not deny owing the loan and did not dispute the computation. Following taxation, the applicant also paid the costs of Kshs 915,058 per the certificate of costs. Having paid out the outstanding decretal sum and the taxed costs, the decree was duly settled and the applicant stood fully and finally discharged.

p. 3
03

Whether the respondent is estopped from challenging the deduction of the loan from the decretal sum

Holding

Yes — the respondent accepted the deduction of the undisputed loan from the decretal sum and is bound by estoppel and the doctrine of approbation and reprobation

Reasoning

Relying on Serah Njeri Mwobi v John Kimani Njoroge (estoppel precludes a person from asserting something contrary to what is implied by a previous action or statement) and Evans v Bartiam (a man having accepted a benefit given by a judgment cannot allege its invalidity), the Court held that the respondent could not accept the loan deduction from the decretal sum and later seek to reject the validity of that deduction. The Court refused to aid an apparent injustice of unfair enrichment urged for the respondent.

p. 3

Legal principles established

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  • Matters arising out of satisfaction of a decree are determinable by the Court which passed the decree, even where the set-off was not pleaded
  • A party cannot accept the benefit of a deduction (set-off) from a decretal sum and subsequently challenge the validity of that deduction — approbation and reprobation / estoppel

Court orders

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  1. 1.The warrants of attachment and sale of the applicant's property issued by this Honourable Court on 02.08.2024 and all processes flowing therefrom are set aside
  2. 2.A declaration is hereby issued that the applicant stands fully and finally discharged from all claims arising from the decree issued by the Honourable Court on 17.05.2019 and the ruling dated 11.03.2024
  3. 3.No 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
Court's inherent powers over satisfaction of its own decree — the Court which passed the decree determines matters arising out of its satisfaction

Relief refused

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Costs of the application sought by the applicant

The Court allowed the application but declined to award costs, considering that the respondent will bear, if any, the costs of the auctioneers

p. 4

Costs

No costs of the application — each party to bear their own costs; the Court expressly ordered 'No 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.

The warrants of attachment and sale of the applicant's property issued by this Honourable Court on 02.08.2024 and all processes fiowing therefrom are set aside.
p. 4Final orders — setting aside warrants of attachment
The declaration hereby issued that the applicant stands fully and finally discharged from all claims arising from the decree issued by the Honourable Court on 17.05.2019 and the ruling dated 11.03.2024.
p. 4Final orders — declaration of full and final discharge
While it is true that the set ofi was not pleaded and parties were bound by their pleadings, it is also true that matters arising out of satisfaction of the decree are determinable by the Court which passed the decree and in the suit subject of the decree.
p. 3Jurisdiction over satisfaction of decree
The doctrine of approbation and reprobation requires for its foundation inconsistency of conduct, as where a man, having accepted a benefit given him by a judgment cannot allege the invalidity of the judgment which conferred the benefit
p. 3Estoppel — approbation and reprobation (Evans v Bartiam, adopted)
No costs of the application.
p. 4Costs

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, "Mule v HFC Limited; M/S Milan Auctioneers (Interested Party) (Cause 1145 of 2016) [2025] KEELRC 1323 (KLR)", Case Analysis (2025). Notice of Motion application dated 12.08.2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1323/eng@2025-05-09

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