[2014] KEELRC 944 (KLR)
The Court found that the Auctioneer's Rules clearly place responsibility for auctioneer's charges on the judgment debtor, who in this case is the Respondent. The Court also held that since the auctioneer was not a party to the proceedings, it would be contrary to natural justice to make a determination adverse to...
Source-derived case information.
- Citation
- [2014] KEELRC 944 (KLR)
- Parties
- Applicant: Transport Workers Union; Respondent: African Safari Diani Adventure
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 21 of 2013
- Procedural Posture
- Employment Cause / Ruling on Release of Deposited Funds and Auctioneer's Charges
- Outcome
- Respondent's application declined; funds to be released to Claimant and auctioneer.
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Termination, Execution of Judgment, Auctioneer Charges, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Transport Workers Union
Applicant
African Safari Diani Adventure
Respondent
Procedural Posture
Employment Cause / Ruling on Release of Deposited Funds and Auctioneer's Charges
Legal Issues
- 1 Whether the amount deposited in Court as auctioneer's charges should be released to the Respondent or to the Claimant and auctioneer.
- 2 Who is responsible for payment of auctioneer's charges under the Auctioneer's Rules.
Ratio Decidendi
The Court found that the Auctioneer's Rules clearly place responsibility for auctioneer's charges on the judgment debtor, who in this case is the Respondent. The Court also held that since the auctioneer was not a party to the proceedings, it would be contrary to natural justice to make a determination adverse to the auctioneer without giving them a hearing. Therefore, the Respondent's application to have the auctioneer's charges released back to it was declined, and the amount deposited in Court was ordered to be released to the Claimant Union for and on behalf of the Grievant and the auctioneer as appropriate.
Court Disposition
Respondent's application declined; funds to be released to Claimant and auctioneer.
Orders
- The application by the Respondent is declined.
- The amount deposited into Court is to be released to the Claimant Union for and on behalf of the Grievant Ali Kirao and the auctioneer respectively.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT MOMBASA
(BIMA TOWERS)
CAUSE NO.21 OF 2013
TRANSPORT WORKERS UNION CLAIMANT
V
AFRICAN SAFARI DIANI ADVENTURE RESPONDENT
RULING
On 28 June 2013 the Court pronounced judgment in which the Claimant was awarded Kshs 158,013/- for unfair termination.
The Claimant extracted a decree and started the execution process. In the meantime the Respondent filed an application dated 17 July 2013 seeking the setting aside of the judgment and leave to file a Response out of time. The application was dismissed on 16 September 2013 for non attendance of the Respondent.
On 23 September 2013 the Respondent filed a new application seeking the reinstatement of the dismissed application. This application was dismissed on 1 November 2013.
On 17 December 2013 the Respondent filed a third application seeking a temporary injunction restraining the Claimant from executing/staying execution. On 19 December 2013 the Court allowed the application on the condition that the decretal sum be deposited into Court and set 27 February 2014 for inter partes hearing.
When the motion came up for inter partes hearing the parties informed the Court that they were negotiating and on 8 April 2014 the Respondent informed the Court that it wished to withdraw the application dated 17 December 2013 and that the monies deposited into Court could be released to the Claimant less the auctioneer’s charges. The reason for this was that the auctioneer had acted ultra vires.
The Claimant however stated that they had paid the auctioneer some money and therefore the Respondent should bear the charges.
This ruling is to determine whether the amount deposited in Court as auctioneers charges should also be released back to the Respondent on account of the auctioneer.
One of the reasons why the Court had granted a stay was because the auctioneer had proclaimed property worth nearly Kshs 1,000,000/- for a debt of Kshs 200,000/-. I observed in that ruling that the auctioneer had gone overboard.
The Auctioneer’s Rules are clear on who should be responsible for auctioneer’s charges. That person is the judgment debtor, the Respondent herein. The Respondent contends that because of the auctioneers conduct it should be denied charges. The Claimant opposes saying it had already paid some deposit to the auctioneer.
The auctioneer is not a party to these proceedings and the Court would be condemning it without giving it a hearing were the Court to concede to the application made by the Respondent. This would not be proper or correct or in accord with natural justice. It would amount to condemning the auctioneer without hearing him.
The application by the Respondent is therefore declined.
On the basis of the withdrawal of the application by the Respondent, the Court orders that the amount deposited into Court be released to the Claimant Union for and on behalf of the Grievant Ali Kirao and the auctioneer respectively.
The Respondent may pursue any complaints against the auctioneer with the responsible body created to handle such type of complaints.
Delivered, dated and signed in open Court in Mombasa on this 11th day of April 2014.
Radido Stephen
Judge
Appearances
Mr. Otieno, Assistant General Secretary
Transport Workers Union of Kenya Claimant Union
Mr. Omuya, instructed by
Hezron Gekonde & Co. Advocates for Respondent