[2015] KEELRC 1259 (KLR)
The court found that no application for stay was made before the issuance of warrants, nor was there any application to settle the decretal sum by instalments or any consent to that effect. The decretal sum had been substantially settled, including part of the auctioneers' charges, except for a small outstanding...
Source-derived case information.
- Citation
- [2015] KEELRC 1259 (KLR)
- Parties
- Applicant: The Karen Hospital; Respondent: Charles Maina Gitonga
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2235 of 2012
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Hearing and Determination
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Decree Execution, Auctioneers Costs, Negotiation During Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Karen Hospital
Applicant
Charles Maina Gitonga
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Hearing and Determination
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the decree pending hearing and determination of the application.
- 2 Whether the decree holder was justified in proceeding with execution despite ongoing negotiations.
- 3 Who should bear the auctioneers' costs incurred during execution.
Ratio Decidendi
The court found that no application for stay was made before the issuance of warrants, nor was there any application to settle the decretal sum by instalments or any consent to that effect. The decretal sum had been substantially settled, including part of the auctioneers' charges, except for a small outstanding amount. In the absence of an order of stay or consent for settlement by instalments, the decree holder was entitled to proceed with execution, and the auctioneers' charges became payable by the judgment debtor. The application for stay therefore lacked merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
CAUSE NUMBER 2235 OF 2012
THE KAREN HOSPITAL………………………………….…….. CLAIMANT
VERSUS
CHARLES MAINA GITONGA………………………………..RESPONDENT
RULING
1. The applicant in its motion dated 12th November, 2014 seeks an order that the Court stays the execution of the decree pending the full hearing and determination of the application.
2. The applicant in its submission filed by counsel on 9th December, 2014 contends that the decree holder proceeded to execute the decree against it despite the fact that negotiations on without prejudice basis were going on.
3. According to Counsel, the judgment debtor did not refuse to pay the decratal sum ordered by the Court save for auctioneers fee demanded which the applicant deemed unnecessary.
4. Counsel submitted that the execution carried out by Kirriyu Auctioneers was malicious and contrary to the spirit of negotiations hence the decree holder ought to bear the cost of auctioneers.
5. The Respondent on its part submitted that the application has spent and the only issue left for determination by the Court was costs.
6. According to counsel judgment was entered in favour of the Respondent on 3rd June, 2014 six months before the application was filed and no appeal, review of stay of execution was sought by the applicant. A decree was therefore issued and the process of execution followed thereafter.
7. According to Counsel, a perusal of Order 22 of the Civil Procedure Rule 2010 reveal that there is no requirement for a decree holder to negotiate with the judgment debtor before execution of a valid decree. Counsel submitted further that sufficient notice had been given by the Respondent before the execution of the decree and that section 22 of the Auctioneers’ Act is clear that costs of an auctioneer in execution of a valid decree should be borne by the judgment debtor.
8. I have perused the file herein and gone through submissions by both counsel concerning this application and it would appear that no application for stay was sought before the issuance of warrants in this matter. Further there is no application on record by the judgment debtor seeking to settle the decretal sum by instalments nor is there any consent recorded in that regard.
9. The Court further observes that the decretal sum herein has been substantially settled including part of the auctioneers charges save for a paltry sum of Kshs.22,470 which the applicants contends should be borne by the decree holder.
10. There being no order of stay or consent on settlement of the decretal sum by instalments, the decree holder was within his right to have the warrants of attachment issued with consequence that the auctioneers; charges became payable.
11. The instant application therefore lacks merit and the same is hereby dismissed with costs.
12. It is so ordered.
Dated at Nairobi this 6th day of March 2015
Abuodha J. N.
Judge
Delivered this 6th day of March 2015
In the presence of:-
……………………………………………………………for the Claimant and
………………………………………………………………for the Respondent.
Abuodha J. N.
Judge