[2024] KEELRC 930 (KLR)

Kenya Tea Development Agency Holding Limited v Kimathi & 2 others (Cause 1293 of 2018) [2024] KEELRC 930 (KLR) (8 April 2024) (Judgment)

Neutral citation: [2024] KEELRC 930 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 1293 of 2018

B Ongaya, J

April 8, 2024

Between

Kenya Tea Development Agency Holding Limited

Claimant

and

Lee Kimathi

1st Respondent

Irene Odhiambo T/A Zasha Auctioneers

2nd Respondent

Meritas Law Africa LLP Advocates (Formerly Protus Saende Gathenge And John Odhiambo Ochola Advocates

3rd Respondent

Judgment

1. The claimant sued the 1st respondent in ELRC Cause 658 of 2011(herein after, previous suit). A decree issued in that suit flowing from the judgment delivered on 14. 10. 2015 and confirmed on 24. 02. 2016 awarding the claimant and the respondent in terms of specific orders.

2. The respondent alleges that the respondents jointly and severally sought to enforce the decree in so far a s it was in favour of the 1st respondent herein. The 2nd respondent and the 3rd respondent were the auctioneer and advocate for the 1st respondent in that suit and in particular the impugned execution proceedings. The claimant alleges that during the execution the 2nd respondent obtained reinforcement of police officers and hired goons and broke into KTDA premises, seized and carted away KTDA’s goods and essential office operations stopped. In the process, the claimant alleges that there was extensive damage to the claimant’s property and disruption of operations together with its managed factories for six consecutive days resulting in losses in the sum of millions of shillings, the subject of the instant suit. The claimant alleges that warrants of attachment were unlawfully obtained.

3. The claimant’s suit is based on the memorandum of claim dated 06. 08. 2018 and amended on 15. 10. 2018. The 3rd respondent was struck from the suit by a consent dated 24. 06. 2022. the claimant prayed for judgment against the 1st and 2nd respondents for:a.Special damages of Kshs. 7, 566, 966. 98. b.General damages.c.Exemplary damages.d.Costs of the suit.e.Compound interest on (a), (b) and (c) above from 01. 12. 2016 until payment in full.

4. The 1st respondent filed the amended response dated 25. 10. 2023 to oppose the claimant’s amended memorandum dated 15. 10. 2018. The 1st respondent denied the claimant’s claims and pleaded that the 1st and 2nd respondents lawfully undertook execution in the previous suit. The 2nd respondent’s case and testimony was that the 1st respondent never directed the 2nd respondent on how to undertake the execution proceedings in the previous case.

5. The 2nd respondent filed a defence dated 08. 12. 2020 and filed on 09. 12. 2020 and prayed that the suit be struck out with costs. The 2nd respondent’s case was that after the attachment and removal of proclaimed goods in the previous suit, the claimant herein offered to settle the decretal sum of Kshs. 5, 565, 717 and auctioneers charges of Kshs. 820,000. 00. after the settlement of the decretal sum on 01. 12. 2016 and 02. 12. 2016 respectively, the 1st respondent’s advocates authorised the 2nd respondent to release the attached goods which was done on 05. 12. 2016. The 2nd respondent denied any wrongdoing.

6. The claimant’s witness (CW) was Mathew Ouma Odero, the Company secretary. The 1st respondent testified to oppose the suit. The 2nd respondent’s equally testified at the hearing. Final submissions were filed for the parties. The claimant’s submissions were filed on 05. 03. 2024 through G& A Advocates; for the 1st respondent they were filed through Saende Law Advocates and dated 15. 03. 2024; and for 2nd respondent dated 06. 03. 2024 through Kefa Ombati & Company Advocates.

7. The Court has considered the material on record and the parties’ respective cases and returns that the suit must fail because of the following findings:a.As testified for the claimant by CW, the suit arises out of the impugned execution in the previous suit. The further evidence is that the execution was undertaken by the 2nd respondent and the 1st respondent who was an employee in the that previous suit never gave the 2nd respondent instructions in the manner of carrying out the execution. In the circumstances, the dispute as originated appears not to revolve or evolve from an employment or work related dispute. The submission for 1st respondent is upheld in that regard.b.The dispute arises out of the execution process in the previous suit. Section 34 of the Civil Procedure Act provides that all disputes arising from execution proceedings shall be determined by the court executing the decree in that suit and not by a separate suit. The section provides as follows:1. All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.2. The court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit, or a suit as a proceeding, and may, if necessary, order payment of any additional court fees.3. Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the court.Explanation.—for the purposes of this section, a plaintiff whose suit has been dismissed, and a defendant against whom a suit has been dismissed, are parties to the suit.The Court therefore returns that the instant suit is incurably incompetent and an abuse of the court process as the alleged dispute ought to have been determined in the previous suit subject of the impugned execution proceedings.c.The claimant satisfied the decree in the previous suit, paid auctioneers charges, and, the proclaimed goods were released to the claimant. In view of such action and in absence of appropriate application in the previous suit to challenge the warrants or the entire execution process, the Court returns that on a balance of probability the claimant has failed to establish the claim and to justify the prayers made.

8. The claimant has failed in the suit and will pay costs for the 1st and 2nd respondents.In conclusion, judgment is hereby entered for the 1st and 2nd respondents for dismissal of the suit with costs for the two respondents.

SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS MONDAY 8THAPRIL 2024. BYRAM ONGAYAPRINCIPAL JUDGE