[2015] KEELRC 606 (KLR)
The court found that although the decretal sum stated in the warrant of attachment was erroneous, the Respondent had not settled the award by the time proclamation was done. Therefore, by the time payment was made, the auctioneer had already earned his fee. The court held that the Respondent is liable to pay the...
Source-derived case information.
- Citation
- [2015] KEELRC 606 (KLR)
- Parties
- Claimant: John Otieno Mukabi; Respondent: Kenya Builders & Concrete Company Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2417 of 2012
- Procedural Posture
- Employment Cause / Ruling on Application Regarding Auctioneer's Charges
- Outcome
- application dismissed; respondent liable for auctioneer's charges
- Judges
- L Ndolo
- Legal Topics
- Execution of Judgment, Auctioneer Charges, Decretal Sum Errors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Otieno Mukabi
Claimant
Kenya Builders & Concrete Company Ltd
Respondent
Procedural Posture
Employment Cause / Ruling on Application Regarding Auctioneer's Charges
Legal Issues
- 1 Who is liable to pay the Auctioneer's charges incurred during execution of the warrant of attachment.
- 2 Whether the decretal sum stated in the warrant of attachment was erroneous and its effect on liability for auctioneer's fees.
Ratio Decidendi
The court found that although the decretal sum stated in the warrant of attachment was erroneous, the Respondent had not settled the award by the time proclamation was done. Therefore, by the time payment was made, the auctioneer had already earned his fee. The court held that the Respondent is liable to pay the auctioneer's charges, which are to be calculated based on the correct decretal sum of Kshs.94,003.00 plus costs and interest. The error in the warrant did not shift liability for the auctioneer's charges, as the execution process had already commenced before settlement.
Court Disposition
application dismissed; respondent liable for auctioneer's charges
Orders
- The Respondent shall pay the Auctioneer's charges calculated on the correct decretal sum of Kshs.94,003.00 plus costs and interest.
- No order as to costs in this application.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO 2417 OF 2012
JOHN OTIENO MUKABI.................................................CLAIMANT
VS
KENYA BUILDERS & CONCRETE COMPANY LTD......RESPONDENT
RULING
1. This ruling flows from a dispute between the Claimant and the Respondent as to which party shall bear the Auctioneer’s charges with respect to an execution warrant issued on 5th March 2015.
2. Following execution of a warrant of attachment for the sum of Kshs.188,006. 00 the Respondent filed an application under certificate of urgency on 19th March 2015. In its application, the Respondent states that the decretal sum in the warrant of attachment was erroneous as the amount awarded by the Court was Kshs.94,003. 00 plus interest amounting to Kshs.4,700. 00 as at March 2015. Taking into account agreed costs of Kshs.87,116. 00 the total sum due to the Claimant net of statutory tax was Kshs.161,113. 70. The Respondent further states that the full amount due to the Claimant, being Kshs.161,113. 70 had been settled.
3. In a replying affidavit sworn by the Claimant's Counsel, Namada Simoni on 15th April 2015, it is deponed that the error in the decretal sum as reflected in the warrant of attachment was made by registry staff. At any rate, payment by the Respondent came after proclamation and auctioneers charges had therefore already been incurred.
4. Looking at the pleadings and submissions filed by the parties in this application it is apparent that the decretal sum stated in the warrant of attachment was erroneous. It is however also true that by the time proclamation was done on 11th March 2015, the Respondent had not settled the award given by the Court.
5. It follows therefore that by the time payment was made on 16th March 2015, the Auctioneer had earned his fee which is due from the Respondent. The fee is to be calculated on the basis of the correct decretal sum of Kshs.94,003. 00 plus costs and interest.
5. I make no order for costs in this application.
6. Orders accordingly.
DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 31ST DAY OF JULY 2015
LINNET NDOLO
JUDGE
Appearance:
Mr. Namada for the Claimant
Mr. Molenje for the Respondent