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JudgmentDENNIS KEISER VS MAKUPA TRANSIT SHADE LIMITED6 min read

DENNIS KEISER VS MAKUPA TRANSIT SHADE LIMITED

Employment and Labour Relations Court at Mombasa ELRC · · MBARU MONICA

Summary

The court in Mombasa ruled that the claimant's attempt to execute a decree was unlawful as the respondent had complied with the court's orders from 14 March 2024, including paying the claimant's unpaid salary within 30 days and adhering to the 45-day stay for appeal. The court found that the claimant's execution proceedings were illegal due to misleading the court about compliance and issued an order to nullify the attachment warrants, restrain the claimant from further harassment, and award costs to the respondent.

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT MOMBASA

CAUSE NO.47 OF 2020

DENNIS KEISER …………………………………………………………… CLAIMANT

VERSUS

MAKUPA TRANSIT SHADE LIMITED ……………………………… RESPONDENT

RULING

The respondent filed an application dated 29 May 2024 under the provisions of Section 79G and 95 of the Civil Procedure Act, Orders 42, 43 and 51 Rule 1 of the Civil Procedure Rules and Articles 50 and 159(2) of the Constitution seeking;

  1. Spent.
  2. Spent.
  3. Pending hearing and determination of this application the court do order the applicant to stop forthwith executing the decree herein since this court already granted a stay of execution pending appeal on the 14 day of March 2024.
  4. This court be pleased to issue an order to nullify and cancel the warrants of attachment dated 24 May 2024.
  5. An order be made directing the claimant to cease from further harassing the respondent.
  6. Costs of this application be provided for.

The application is supported by the affidavit of Abdiwahid Haji Yerrow the managing director of the respondent and on the basis that the respondent filed an application dated 25 January 2024 seeking orders of stay for execution pending appeal. The court heard the application and on 14 March 2024 delivered a ruling and allowed the application under conditions set therein. The conditions given were to ensure that the appeal was filed within 45 days and that the respondent paid the claimant his unpaid salary for the month of November 2019.

The respondent has since paid the due salary through two cheques forwarded to the claimant’s advocates via Wells Fargo Courier who has since acknowledged receipt. However, without any justification, the claimant has obtained fresh warrants by misleading the court that the respondent has failed to comply with the orders issued.

The execution commenced by the claimant is illegal and an order should be issued restraining the respondent from executing the warrants of attachment.

Mr. Yerrow aver in his affidavit that on 29 May 2024, he was shocked to see 20 persons accompanied by the police from Mbaraki Police Station entering his boardroom and threatening to execute warrants purporting to be about the decree of the court. The issued warrants were without the claimant disclosing to the court that the respondent had already complied with the orders issued on 14 March 2024.

Unless the claimant is restrained by an order of the court from proceeding with the illegal execution, the respondent will suffer great injustice.

Mr. Yerrow also filed his Supplementary Affidavit and aver that in compliance with the court orders herein, the claimant’s one-month salary was paid as directed by the court. This payment was to be directly paid to the claimant who had worked up to 21st November 2021. The paid salary is subject to statutory deduction as required under the law and KRA the respondent is a tax-compliant entity. The respondent paid in Kenya Shillings as there were no available United States Dollars and the court ruling did not specify the currency for the payment of the due salary.

In reply, the claimant filed his Replying Affidavit and aver that in the court ruling delivered on 14 March 2024 there was no stay of execution allowed. There was no express stay of execution pending the hearing of the appeal.

A stay of execution in its nature is indefinite, pending the outcome of the appeal. The order of stay of execution that was granted was for a period of 45 days.

The orders of 14 March 2024 were for a specific purpose which was to allow the respondent to file and serve an appeal. Consequently, the respondent having filed the appeal in time, the order of stay was spent. It was incumbent upon the respondent upon filing the appeal to seek further orders or review as might be necessary or desired but it is apparent that they have not done so.

The claimant avers that there are no orders of stay pending appeal and this allowed him to proceed with the execution.

The order directing the respondent to pay his salaries has not been complied with in blatant violation of the orders of the court. The court directed that he be paid in United States Dollars but the respondent has opted to write a cheque in Kenya Shillings. The respondent has further admitted to unilaterally making deductions from such an amount without reference to the claimant in breach of the court orders.

The cheques were issued in the claimant’s name instead of his advocates which is unprocedural. The advocates are holding these cheques and may be returned uncashed and without the respondent complying as directed by the court, the claimant is justified to proceed and execute the judgment.

The claimant aver that given the conduct of the respondent during the termination of his employment and in these proceedings, they are not deserving of the orders sought. The instant application is meant to delay justice and should be dismissed with costs.

Both parties attended and made oral submissions. The respondent also filed skeleton written submissions.

Determination

The gist of the instant application is the interpretation of orders in the ruling delivered on 14 March 2024. On the one part, the claimant asserts that there was no stay for execution allowed and hence after 45 days he was at liberty to proceed with execution. On the other part, the respondent asserts that there is full compliance with the orders and conditions granted by the court and the execution proceedings are unlawful and not procedural.

The need for clarification, interpretation or other sufficient cause necessary to address orders of the court where not found clear is addressed under Rule 33 of the Employment and Labour Relations Court (Procedure) Rules. To proceed and apply a personal interpretation to support execution proceedings is contrary to the principles of the rule of law.

The ruling dated 14 March 2024 arose from an application dated 25 January 2024 seeking;

Pending hearing and determination of this application, the court do grant a stay of execution of its judgement delivered on 18 December 2023.

Pending the hearing and determination of the intended appeal, this court do grant a stay of execution of its judgment delivered on 18 December 2023.

The court addressed this application and allowed the application and also issued the following conditions;

Accordingly, the application dated 25 January 2024 is allowed in the following terms;

  1. Stay of execution is hereby allowed for 45 days to allow the respondent to file and serve an appeal;
  2. The award of unpaid salary shall be released to the claimant within 30 days;
  3. Non-compliance with (a) above, the order of stay shall automatically lapse;
  4. No orders on costs.

The application seeking a stay of execution pending the hearing and determination of the intended appeal was allowed and to ensure that the respondent acted as directed, where there was no appeal filed within 45 days, such order of stay would lapse.

The claimant in his Replying Affidavit avers that there is an appeal filed within time.

Further, the respondent was required to pay the claimant his due salary within 30 days. The currency for the same is not noted in the judgment. There are two separate cheques issued in this regard. The amounts relate to the 21 days the claimant worked in the month of November 2021.

Under Section 18 of the Employment Act, the employer is allowed to pay the employee for days worked only. This is lawful and legitimate. A due salary is owed to the employee. Costs of the suit if they are awarded go to the advocates of a party.

Under the provisions of Section 49(2) of the Employment Act, every employer is required to deduct statutory dues at source, whether this is part of the court orders or not. It is a statutory requirement and a heavy penalty follows the employer where there is no compliance.

(2) Any payments made by the employer under this section shall be subject to statutory deductions.

All payments made to the claimant by the respondent as the employer are subject to statutory deductions.

The respondent has met the conditions for a stay of execution as directed on 14 March 2024 and the orders sought herein to restrain the claimant from attaching its property in execution proceedings are justified. To proceed outside the lawful process of the court is harassment of the respondent.

Accordingly, the application dated 29 May 2024 is with merit and is hereby allowed;

  1. The respondent has complied with the orders issued on 14 March 2024; the claimant is hereby restrained from executing the decree herein pending the hearing of the appeal;
  2. The warrants issued in execution of the decree herein are stayed;
  3. The claimant is to meet the costs of this application.

 Delivered in open court at Mombasa this 30 day of September 2024.

M. MBARŨ

JUDGE

In the presence of:

Court Assistant: Japhet

……………………………………………… and ……………………………………………

    DENNIS KEISER VS MAKUPA TRANSIT SHADE LIMITED DENNIS KEISER VS MAKUPA TRANSIT SHADE LIMITED