https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1383

Kaleve & 2 others v East African Portland Cement Company Limited (Cause 248, 247 & 249 of 2019 (Consolidated)) [2026] KEELRC 1383 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1383 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause 248, 247 & 249 of 2019 (Consolidated) ON Makau, J May 21, 2026 Between Musa Mohammed Kaleve 1st Claimant Peter Ndungu Matheri 2nd Claimant Charles Maina Jesse 3rd Claimant and East African Portland Cement Company Limited Respondent Ruling 1.This ruling relate to two applications. The first is the Notice of Motion by the Respondent in the suit dated 10/4/2025 brought under Rule 32 of the Employment and Labour Relations Court Procedure Rules, 2016, Order 22 Rule 18 of the Civil Procedure Rules and Section 1A, 1B, and 44 of the Civil Procedure Act. It seeks the folowing orders:-a.That this Application be certified urgent and heard ex parte in the first instance.b.That Pending the hearing and determination of this Application, this Honourable Court be pleased to issue an order stopping the proclamation and sale of the Applicants property, assets, or goods through the Warrants of Attachment and the Proclamation Notice both dated 8th April 2025.c.That this Honourbale Court be pleased to issue a declaration that the attachment and proclamation undertaken by Icon Auctioneers is irregular, unlawful, and in contravention of the applicable laws and procedure.d.That this Honourable Court be pleased to set aside and/or declare null and void the warrants of attachment and sale issued on 8th April 2025 and the Proclamation notice also dated 8th April 2025 by Icon Auctioneers.e.That this Honourable Court be pleased to issue directions and interpretation regarding the computation and effective accrual date of interest on the decretal sum, including an account of how the total interest claimed was arrived at, in light of the earlier court-ordered deposit of the decretal amount and the circumstances of the case.f.Such further and other reliefs as this Honourable Court may deem just and expedient to grant.g.That costs of this Application be provided for. 2.The Motion is supported by the Affidavit sworn 10th April 2025 by the Respondent’s Senior Legal Counsel, Roselyne Ominde and it is opposed by the Claimants through a Preliminary Objection dated 23rd April 2025 and a Replying Affidavit sworn by the 2nd Claimant on 27th May 2025. 3.The 2nd Application is the Claimant’s Amended Notice of Motion dated 3rd October 2025 brought under Section 12 and 13 of the Employment and Labour Relations Court Act 2011 and Rule 17 of the Employment and Labour Relations Court Procedure Rules. It seeks the following orders:-a.That the Honourable Court be pleased to order that the balance of Kshs. 975,366.32 deposited in court by the Respondent or such sum as may be available be released to the firm of Nyabena Alfred & Co. Advocates, who have been in conduct of this matter on behalf of the Claimants/Applicants for onward transmission to the Claimants/Applicants.b.That this Honourable Court do order and direct that the interest payable is Kshs. 8,170,986.00 from the date of filing of the suit on 12th April 2019 to 5th December 2024 when the decretal sum was released to the Claimants.c.That the Deputy Registrar of this Honourable court do amend the warrants of attachment to reflect the same.d.That this Honourable court do give such directions as it may deem fit to meet the ends of justice.e.That the costs of the application be paid by the Respondent/Judgment debtor. 4.The Motion is supported by the Affidavit sworn on 23rd September 2025 and 9th February 2026 by the 2nd Claimant and it is opposed by the Respondent vide a Replying Affidavit sworn on 27th November 2025 by the said Roselyne Ominde. 5.The two Motions were disposed of by written submissions and I will address each application separately. Respondent’s Motion dated 10th April 2025. 6.The Respondent’s case is that Icon Auctioneers have served it with Warrants of Attachment and Proclamation Notice; that its goods are at the risk of being sold by auction; that it deposited the entire decretal sum in court and it was released to the Claimants; that any further execution is unlawful, unjustified and amounts to abuse of court process; that no notice to show cause was served before commencing the execution as required under Order 22 Rule 18 of the Civil Procedure Rules as read with Rule 32 of the Employment and Labour Relations Court Procedure Rules; that the auctioneers has undervalued the proclaimed items in the proclamation notice; that the proclaimed items are tools of trade and their disposal will paralyse the company’s business of manufacturing and selling of cement; that the attachment will also lead to job losses for over 500 employees; that there is a controversy over computation of interest and the accrual period which needs to be clarified; that there is material non-disclosure on the Claimants side as the Respondent has discovered that the 1st and 3rd Claimant passed away on 9th June 2022 and 20th March 2021 respectively and no legal representatives have substituted them; and that the execution is illegal, unfair, and detrimental to the company. 7.The Claimants case, on the other hand is that the Respondents Motion is res-judicata and the court has no jurisdiction to entertain it in view of its earlier decisions dated 21st November 2024 and Court of Appeal’s decision dated 2nd March 2025 which dismissed application for stay of execution; that the interim order of stay herein was granted upon concealment of material facts; that the court delivered judgment on 5th February 2020 for accumulative sum of Kshs. 14,226,341.67 plus costs and interest at court rates from the date of filing the suit on 12th April 2019 till payment in full; that the interest at court rate refers to 12% unless otherwise directed by the trial court; that the interest computed by the Deputy Registrar is less then what was ordered by the court as it was assessed from the date of the Judgment to 6th December 2024, when the decretal sum was released too them; that the 1st and 3rd Claimant died after the Judgment and as such substitution is not required under the Civil Procedure Rules; and that the Application is defective an abuse of the court process. Claimants’ Amended Notice of Motion dated 3rd October 2025 8.The Claimants’ case was that, this Court, on 14th February 2020, delivered judgment in favour of the Claimants for payment of Kshs. 14,226,341.32 plus costs and interest at court rates from the date of filing the suit, being 12th April 2019 to 6th December 2024; that the Respondent, was dissatisfied with the judgment and filed an application dated 3rd March 2020 seeking stay of execution; and that this Court delivered a Ruling on 5th February 2021 granting stay of execution on condition that the Respondent deposits the whole decretal amount in a joint interest earning account held in the names of counsel for both parties within 21 days, that is, by 26th February 2021. 9.The Claimants further averred that the Respondent defaulted and the Claimants proceeded with execution; that the Respondent's filed an application dated 28th May 2021 seeking extension and variation of the order of stay of execution; and that this Court granted the orders on condition that Kshs. 3,500,000 be deposited in court forthwith and the balance be deposited in court in equal monthly instalments of Kshs. 975,122 effective 30th June 2021 and thereafter every 20th day of the succeeding months. The Court further ordered that if the respondent defaulted in any of the instalments, execution should proceed. 10.It is further Claimants’ case that the Respondent deposited Kshs. 3,500,000 and the first instalment in time as ordered but thereafter defaulted; that after pull and push and several unsuccessful applications for review and variation of the stay orders, the respondent deposited the balance of the decretal sum in court leaving the interest and the taxed costs outstanding; and that the Claimants applied for release of Kshs. 13,250,975 deposited in court and the court allowed the application vide a ruling delivered on 21st November 2024. 11.The Claimants now contend that they have since discovered that a sum of Kshs. 975,366.32 remained in court, which they seek to have it released to them. They also seek a declaration that the interest payable is Kshs. 8,170,986 calculated from the date of filing suit on 12th April 2019 to 5th December 2024 when the decretal sum was released to them. 12.The Respondent’s case however, is that the Claimants told the Court of Appeal that the entire decretal sum had already been remitted to them, and as such the instant application for release of Kshs. 975,366.32 is therefore untenable and amounts to an abuse of court process. The Respondent further contends that the proper computation period for interest is from 12th April 2019 to 1st November 2021, when the decretal sum was fully deposited in court; that the mandate to compute interest belongs to the Deputy Registrar; and that the computation of the interest must mirror the judgment and the decree. Therefore, it opposed the computation of interest by the claimants and urged that the file should be placed before a Deputy Registrar for fresh calculation of the interest payable. Issues for Determination 13.Having considered the court record, the two Motions, preliminary objection, rival Affidavits and submissions by both sides, it is clear that the preliminary objection by the claimants concerns the prayer for stay of execution which was sought on interim basis. It is now spent and therefore I will not waste time considering it any further. 14.The main issues in controversy in the two motions are: -a.Whether the execution by Icon Auctioneers vide the Warrants of Attachment and Sale, and the Proclamation Notice, both dated 8th April 2025 is unlawful in view of the demise of the 1st and 3rd Claimants and for failure to serve a Notice to Show Cause.b.Whether the Claimants are entitled to the release of Kshs. 975,366.32 allegedly remaining in court;c.Whether the interest computed by the Deputy Registrar in the impugned Warrants contravenes the judgment of the court. Analysis (a)Unlawful attachment and Proclamation 15.The Applicant has produced death certificates showing that the 1st Claimant, Musa Mohamed Kaleve, died on 9th June 2022 and the 3rd Claimant, Charles Maina Jesse, died on 20th March 2021. No substitution has been effected, nor was this Court or the Applicant/Judgment debtor notified of the same. 16.The Respondent/Decree Holders relies on Order 24 Rule 10 of the Civil Procedure Rules, which provides that nothing in Rules 3, 4 and 7 shall apply to proceedings in execution of a decree or order. They argue that substitution is not required after judgment. 17.In my view Order 24 Rule 10 of the Civil Procedure Rules, merely serves the purpose of assuring that a suit does not abate if claimant dies after entry judgment. Nothing more. Not even validation of execution. The question that arises herein is whether execution can proceed in favour of a deceases decree-holder. 18.Order 22 Rule 6 provides that:-“Where the holder of decree desires to execute it, he shall apply to the court … and the application under this rule shall be in accordance with Form No. 14 Appendix A.” 19.The wording of the above rule contemplates existence of the decree holder. In my view, no execution can be commenced after the death of a decree holder before substitution with legal representative, except where, the execution had commenced before the demise of the decree-holder. Where a decree-holder dies, the decree remains in force but becomes unenforceable until substitution is done. The decree only loses its force after the limitation period of 12 years prescribed by section 4 of the Limitation of Actions Act. 20.In this case, the two deceased decree holders have never been substituted since 2022 and 2021 when they died. The impugned execution commenced after their death, and therefore, it is incompetent as far as the two deceased Claimants is concerned. However, as regards the 2nd claimant who is alive, the execution can proceed if properly commenced. 21.The Respondent contends that the execution was improperly commenced because the claimants never served it with a notice to show cause as required where a year has lapsed after entry of the judgment. Order 22 Rule 18 of the Civil Procedure Rules provides that:-“(1)Where an application for execution is made-a.More than a year after the date of the decree;… the court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him;” 22.There is no evidence on record that any such Notice to Show Cause was ever issued or served upon the Applicant/Judgment Debtor. Also, the claimants did not address this procedural lapse in their affidavits or submissions. 23.In Anil Ratilal Tailor & another v. Gorsasia Hiteshi Ramji & another [2021] eKLR, the Ougo J held that:“In the end, I find that the execution was irregular on account of non-compliance with the provisions of order 22 Rule 18 of the civil procedure rules and the execution of the decree is hereby set aside. The warrants of attachment …are recalled and shall be deposited with the relevant registry.” 24.I entirely agree with above decision and I adopt it in the instant case as it applies to the facts of the case. The warrants of attachment and proclamation were issued on 8th April 2025 for execution of a decree issued on 14th February 2020. 25.Having found that the execution herein is irregular for being commenced without substitution of the two deceased claimants, and also without first serving a Notice to Show Cause on the respondent, I allow the respondent’s motion dated 10th April 2025 on those grounds. Release of Kshs.975,366.32 26.The Respondent contends that the Claimants, in their application filed before the Court of Appeal, represented that the entire decretal sum had already been remitted to them. The Respondent argues that it was on the basis of this representation that the Court of Appeal, in its ruling dated 21st March 2025, declined to grant stay of execution, finding no basis to preserve the decretal sum. 27.I have perused the Court of Appeal ruling dated 21st March 2025 as annexed to the Respondent's Replying Affidavit. In that ruling, the Court of Appeal noted the Respondent's (Applicant before that Court) contention that there was prima facie evidence that the decretal sum was released to the Respondents' (the Claimants herein) advocates on 10th December 2024. The Court of Appeal stated:-“Before us there is prima facie evidence that the decretal sum was released to the respondents' advocates on 10th December 2024. In the circumstances, the applicant has failed to persuade us that unless we grant the stay sought, the appeal, if successful, will be rendered nugatory.” 28.The Court of Appeal did not make a finding that the entire decretal sum had been paid but it merely observed that there was prima facie evidence of payment of the decretal sum. However, it is clear from the record that this Court, in its ruling delivered on 21st November 2024 ordered for release of Kshs. 13,250,975 deposited in Court be released to the Claimants through their advocates on record. Consequently, I find that a balance of Kshs. 975,366.32, being the difference between the full decretal sum of Kshs. 14,226,341.32 deposited in court and the sum of Kshs. 13,250,975 released to them, ought also to be released to them through their advocates on record after substitution of the deceased claimants. The interest payable 29.The Claimants further seek a declaration that the interest payable to them is Kshs. 8,170,986 calculated at the rate of 12% per annum from the date of filing suit on 12th April 2019 to 5th December 2024 when the decretal sum was released to them. The Respondent contends that interest ceased to accrue on 1st November 2021 when the decretal sum was fully deposited in court. 30.It cited the case of National Media Group Ltd v. Muya (Civil Appeal E132 of 2021 [2025] to buttress the foregoing view. In the said case, the decretal was deposited in court as security pending appeal in the High Court and thereafter a controversy over the interest on the deposited security arose, as in the instant case. Nyaga J held:-“Judgement of the lower court was delivered on 5th November 2021. The Applicant deposited security in court on 5.9.2022. It would thus be unfair to condemn the Applicant to pay interest on the said sum after depositing the same.Therefore, as regards interest on the decretal sum, the respondent is entitled to the same with the effective dates being from the date of delivery of the Judgment on November, 15,2021, to the date the Applicant deposited the decretal sum in court on September, 5,2022.As regards the interest on costs in the lower court, the same accrue from the date of the Judgment until the date of payment in full.” 31.I am of a different view from the above decision. I see no unfairness in claiming interest on decretal sum deposited in court under a conditional order of stay sought by the Judgment debtor. I say so because the decree holder does not have access to the funds until the court lifts the conditional stay order. Consequently, money deposited in court as a condition for an order of stay should accrue interest from the date stated in the judgment to the date when it becomes accessible to the decree holder. 32.However, in case of an unconditional deposit, that is, where the judgment debtor deposits the decreed sum in court for collection at the pleasure of the claimant, such sum does not accrue any interest from the date it is deposited, since it readily accessible by the decree holder. 33.In this case, it is clear that in judgment delivered on 14th February 2020, that the court awarded the Claimants an aggregate sum of Kshs 14,226,341.32 plus costs and interest at court rate from the date of filing suit. Admittedly, the Respondent deposited the decreed sum in court as a condition for stay pending appeal. The money was deposited by instalments until 1st November 2021 when the last instalment was deposited and it was released to the Claimants vide a release order made on 21st November 2024. 34.In the circumstances of this case, I find that the correct period for computing interest is from the date of filing suit on 12th April 2019 to the date of release of the funds to the Claimants, which from the record appears to be 10th December 2024. I say so because the Respondent did not deposit the decretal sum unconditionally for the Claimants to have free access to the same. The funds were held in court pursuant to stay orders that the Respondent sought. The Claimants could not enjoy the fruits of the judgment until the funds were released to them. 35.In the impugned Warrants of Attachment, the Deputy Registrar computed interest for 934 days based on the court judgment of 14th February 2020, but it is not clear how the 934 days were arrived at. The claimants maintained that the correct period for charging interest was 1,747 days from 12th April 2019 when the suit was filed to 10th December 2024 when the funds were released from the court. My simple calculation does not agree with the Claimants 1,747 days. Consequently, I agree with both sides that there is need to verify the correct interest payable on the decreed sum as ordered in the Judgment starting from the date of filing the suit on 12th April 2019 to the date when the decreed sum was released by the court to the claimant on 10th December 2024. The interest shall be at court rate which is 12% per annum. Conclusion 36.I have found merits in the two motions in so far as they challenge the computation of the accrued interest on the decreed sum. I have further found that the Claimants are entitled to the balance of Kshs. 975,366.32 which remained in court, after the sum of Kshs. 13,250,975 was released pursuant to the order of 21st November 2024. Finally, I have found that the execution vide the warrants of execution and proclamation dated 8th April 2025 is irregular and unlawful. Consequently, I make the following orders:-a.The balance of Kshs. 975,366.32 deposited in court shall be released to the firm of Nyabena Alfred & Co. Advocates for onward transmission to the Claimants/Applicants after substitution of the deceased claimants with their legal representatives.b.The Deputy Registrar of this Court shall compute interest on the principal sum of Kshs. 14,226,341.32 at 12% per annum from the date of filing suit on 12th April 2019 to the date when the funds were released to the Claimants being 10th December 2024.c.The Warrants of Execution and Proclamation Notice dated 8th April 2025 are hereby recalled and set aside.d.Each party shall bear its own costs of this application, since there is merits in both motions. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 21ST DAY OF MAY, 2026.ONESMUS MAKAUJUDGEAppearance:Nyabena for Claimant/Decree HolderMugi for Kamau for Judgment Dector