Background
1 By a notice of motion dated 9th of December 2024, expressed to be under Sections 3 & 12 of the Employment and Labour Relations Court Act and Rule 44 of the Employment & Labour Relations Court [Procedure] Rules, 2024, the Appellant seeks;
i. That the application be certified urgent and the service be dispensed with in the first instance.
ii. That there be a stay of execution of the warrants of attachment dated 22nd November 2024, or any other execution proceedings, pending the hearing and determination of this application,
iii. The warrants of attachment dated 22nd November 2024, and all execution proceedings pursuant to them, be set aside unconditionally.
iv. The costs of this application, and the said execution proceedings, shall be borne by the Respondent.
2 The application is premised on the grounds set out on the face of the application and on the supporting affidavit sworn by Nancy Gacheru, its Compliance & Employee Relations Specialist, sworn on 9th December 2024.
3 When this matter came up for mention for directions on the hearing of the instant application, this Court directed that the Respondent file a response to the application within 7 days of the date of mention, and that the application be canvassed by way of written submissions. The Court further set timelines for the filing of their respective submissions.
4 The Respondent didn’t file a response to the application or response submissions, within the timelines or at all.
The Application
5 The Appellant states that by a judgment of this Court rendered in this appeal dated 24th September 2024, its appeal was partly allowed and the trial court’s decretal sum lowered from 368 940.00 to KShs. 249, 626.00. The Respondent was awarded interest on the lower court's new decretal sum and costs.
6 The Respondent irregularly instructed Auctioneers who proclaimed its properties in execution of the decree.
7 The proclamation was unlawful and illegal as;
i. The application for execution was made to the lower court, but warrants of attachment were issued by this court.
ii. The warrants refer to a decree issued on 24th September 2024, yet there is no such decree.
iii. The decree dated 6th November 2024 refers to the sum of KShs. 420, 591.00, yet the decretal amount was disturbed by the judgment herein.
iv. The warrants were issued without costs being assessed as required by Order 21, rule 9A of the Civil Procedure Rules 2016.
v. By a letter dated 12 November 2024, it requested the Respondent to accept Kshs. 356 686.00 and issued a cheque of KShs—326, 426.00 pending resolution of disputed items. The proclamation on November 25, 2024, was maliciously taken out.
Determination
8 The fact that an application is not opposed in any of those ways provided for in law doesn’t mean that it must succeed automatically. The Applicant must demonstrate that it merits success. The court must interrogate whether it is meritorious or not.
9 In paragraph 4[e] of the supporting affidavit, the deponent, misleadingly, and I hold deliberately, stated;
“Fundamentally, the Appellant had, vide a letter dated 12th November 2024, requested the Appellant to accept KShs. 356, 686, and issued a cheque of KShs. 326, 426.00 pending resolution of the disputed items [ I annex and mark as NG-5 a copy of the Appellant’s letter dated November 2024 and the cheque for KShs. 326,426.00]”
10 Deliberately misleading, as when one looks at the letter Marked NG-5, contrary to the Appellant’s above-stated assertion, the letter is dated 26th November 2024, not 12th November 2024, as stated. The letter clearly indicates that the Cheque number 028717 dated 25th November 2024, was being forwarded thereunder, again contrary to the impression created by the assertion that the cheque was for 12th November 2024.
11 The Appellant further stated that the cheque was issued pending resolution of some disputed items. A keen look at the letter will reveal that it isn’t expressive of the fact that the cheque was being issued pending deliberations and resolution of any controversy on an issue[s]. The tone of the letter was unambiguous. The balance was to be remitted by Counsel for the Respondent immediately they received a cheque from their client.
12 With these half-truths, the Appellant concluded, and wants this Court to be persuaded that the proclamation was done maliciously after the letter and the cheque were issued, yet there were ongoing deliberations on some disputed items. I refuse to be persuaded.
13 It is important to note that the proclamation was effected on 25th November, 2024. No doubt, the issuance of the cheque was a knee-jerk reaction.
14 I have carefully considered the application for execution, the warrants of attachment and sale, and the proclamation form; they all factored in the effect of the judgment herein, the reduction of the lower court’s decretal sum. This Court notes that the decree dated 6th November 2024 appears to be, in content, a decree of the lower court, which was not subjected to the reduction contemplated in the judgment of this court. However, it is clear that the decree in the manner extracted didn’t influence the figures that the Respondent executed for. The figures, in my view, were correct. The Appellant doesn’t contend that they weren’t.
15 The Appellant further assails the execution process that was commenced against it, on the ground that it was so commenced before taxation of party and party costs. This is an argument that stands on quicksand. The Court in its judgment herein was clear, each party was to bear its own costs. There couldn’t arise, therefore, a situation for taxation of the party and party costs in this appeal.
16 By reason of the foregoing premise, I come to an inevitable conclusion that the instant application is devoid of merit, misguidedly anchored on half-truths, and is an abuse of the court process, considering that it is so anchored. Consequently, the Appellant’s application is hereby dismissed.
Read, signed and delivered virtually in Nakuru this 10th day of April, 2025.