Leonard Matu Wanjau v Agriculture, Fisheries & Food Authority (Pyrethrum & other Industrial Crops Directorate [2022] KEELRC 787 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAKURU

ELRC CAUSE NUMBER 313 OF 2015

LEONARD MATU WANJAU.............................................................CLAIMANT

-VERSUS-

THE AGRICULTURE, FISHERIES& FOOD AUTHORITY (PYRETHRUM

& OTHER INDUSTRIAL CROPS DIRECTORATE.................RESPONDENT

(BEFORE HON. JUSTICE DAVID NDERITU)

RULING

I. INTRODUCTION

1. In  a Notice of motion dated 17th November, 2021 brought  under Order 22 Rule 22, Order 51 Rule 2 of the Civil  Procedure Rules, and Sections 1A, 1B and 3A of the  Civil Procedure Act, filed under a certificate of urgency,  the Respondent/Applicant prays for the following:-

1. THAT this application be certified as urgent and  service thereof be dispensed with at the first  instance.

2. THAT pending inter-partes hearing and  determination of this application there be stay of  execution of judgment/decree herein.

3. THAT the Claimant/Respondent be directed to  forthwith release motor vehicles registration  number KCP 050K and KCD 311F to the Respondent/Applicant.

4. THAT the warrants of attachment and  proclamation herein be lifted and declared null and  void.

5. THAT the decree and certificate of cots as drawn  herein be cancelled and a fresh decree and  certificate  of costs do issue reflecting sums lawfully  due from the Respondent/Applicant

6. THAT the Claimant/Respondent’s be directed to  account for the sums already recovered by them  through the sale of the Respondent/Applicant’s   motor vehicles registration number KAL 688U and  KCE 099A.

7. THAT the Auctioneer be directed to file his bill of  cots for assessment/agreement on the same.

8. THAT this court be pleased to declare as an  illegality  the act of the Auctioneer in purporting to  retain a sum of Kshs.451. 265. 00 from the proceeds  of sale of Respondent/Applicant’s motor vehicles  registration number KAL 688U and KCE 099A as  the Auctioneer’s fee.

9. THAT this court be pleased to hold and find that  the sum lawfully due to the Respondent is made  up  as hereunder:

a) Decretal sum of Kshs.2,301,384. 80 as     ordered on 18th July, 2019

b) Interest of       - Kshs.363,177. 44

c) Half costs of   - Kshs.103,456. 00

Total due      -  Kshs.2,768,018. 24

Less paid on

account       -Kshs.1,540. 000. 00

Total amount  -Kshs.1,228,018. 24

10. THAT the applicant be allowed to settle the sum due    within 30 days from the date of the order.

11. THAT the costs of this application be in the cause.

2. The matter came before this court on 23rd November,  2021 exparte and temporary stay of further execution of  the judgment/decree herein was issued.  The court further  ordered that motor vehicles registration numbers KCP  050K and KCD 311G belonging to the  Respondent/Applicant attached in execution of the  judgment/decree herein be held in safe custody pending  the hearing interpartes or until further orders of this court.   The said temporary order is in force.

3. The said Notice of motion is supported by an affidavit of  KIONGO P. MURIMI Advocate for the  Respondent/Applicant with several annextures thereto.

4. Upon service of the said application the  Claimant/Respondent filed a replying affidavit sworn by  himself, LEONARD MATU WANJAU, on 29th  November, 2021 annexing thereto several documents.

5. The Respondent/Applicant filed a further supporting  affidavit sworn by PAUL MIRIMU KIONGO Advocate  on 6th December, 2021.

6. On 6th December, 2021 the court directed that the  application be disposed of by way of written submissions.   Both Counsel filed their respective written submissions  Claimants’/Respondent’s dated 16th December, 2021 and  Respondent’s/Applicant’s dated 6th January, 2022.

II. ISSUES FOR DETERMINATION

7. This court has carefully gone through all the materials  placed  before it by both sides as enumerated above and  flowing therefrom the following broad issues manifest for  determination.:-

(i) Is the attachment of Respondent’s/ Applicant’s  motor vehicles KCP 050K and KCD 311G proper,  procedural, and lawful?

(ii) Is it proper and lawful for DIRECT “O”  AUCTIONEERS to withhold Kshs.451,265/=  arising from sale by public auction of  Respondent’s/Applicant’s motor vehicles  Registration numbers KAL 688U and KCE 099A  in execution of the judgment/decree in this cause?

(iii) What amount of money is currently due and  payable by the Respondent/Applicant to the  Claimant/Respondent?

(iv) Who meets the costs of this application?

III. ATTACHMENT OF MOTOR VEHILCES KCP 050K AND KCD 311G

8. There are a number of dimensions that are not contested.   On 18th July, 2019 Lady Justice Mbaru delivered the  judgment in this matter wherein the Claimant/Respondent  was awarded a sum of Kshs.2,301,384. 80 with interest at  court rates.  The learned Judge added “The Claimant is  awarded 50% of his costs as his claims partly succeeded.”

9. Subsequently, the Claimant/Respondent filed a party  and party bill of costs, and as clear as daylight the  Claimant/Respondent was only entitled to 50% of the  costs.  The taxation by the Deputy Registrar (DR) did not  review and or reverse the judgment wherein the Claimant  was awarded only 50% of the costs, and the DR did not at  any point state that the Claimant/Respondent was from  then on entitled to 100% of the costs. It was incumbent  upon the Claimant/Respondent to ensure that any  subsequent action taken after the taxation of the party and  party costs took  into account the fact that he was only  entitled to 50% of the costs.

10. The Claimant/Respondent in his replying affidavit and in  the written submissions by his counsel has argued that if  the Respondent/Applicant was dissatisfied with the  taxation it ought to have filed or made a reference to the  judge under Rule 11 of the Advocates Remuneration  Order (2014). However, as far as this court understands  the  Respondent’s/Applicant’s argument as contained in  the   supporting affidavit to the application, the  supplementary affidavit, and the written submissions, the  Respondent/Applicant is not asking for review or setting  aside of the taxation and the award of the DR. The  argument and position of the Respondent/Applicant is that  based on the judgment of the court the  Claimant/Respondent was entitled to only 50% of those  costs and any further steps taken after the taxation ought to  have been based on the award of half of the costs  in the  judgment as opposed to the entire assessment of  Kshs.206,913/=.

11. As it now turns out the Claimant/Respondent did not take  into consideration the fact that he was only entitled to 50%  of the cots being Kshs.103,456. 50 and instead applied for  warrants of execution claiming the entire 100% of the  costs. This was clearly and outrightly wrong, improper  and unlawful. Likewise it was erroneous and/or an  oversight for the court to issue the warrants of attachment  dated 18th November,  2020 as the same was based on  wrong and misleading calculation on the amount that was  due and owing.  That warrant of attachment was therefore  issued in error apparent on the face of the same.

12. However, MS DIRECT “O” AUCTIONEERS (The  Auctioneers) proceeded to attach the properties of the  Respondent/Applicant acting on the wrongful and  erroneous warrants of attachment and subsequently sold  through public auction the attached properties being motor  vehicles KAL 688U and KCE 099A and realized a sum of  Kshs.1,540,000/=.

13. It is by now evidently clear that the attachment and sale by  public auction of motor vehicles KAL 688U and KCE  099A was  based on wrongful and erroneous warrants of  attachment.

14. Out of the proceeds of the said public auction the  Auctioneer retained a sum of Kshs.451,265/= and paid the  balance to the Advocates for the Claimant/Respondent.   The  Respondent/Applicant argues that this retention is  illegal and that issue shall be dealt with in a moment as  hereunder.

15. Although the above attachment and sale by public auction  of the properties of the Respondent/Applicant was based  on erroneous and wrongful warrants of attachment this  court will not set the same aside for the following reasons.  Firstly, the said attachment and sale is long concluded and  secondly there is no allegation that the vehicles were sold  below the reasonable price of their value.  In any event the  Respondent/Applicant has not sought to have the said sale  set aside. However, as a matter of fact, the warrants  leading to the attachment and the sale were clearly issued  in error and were not accurate in regard to amounts due  and payable. Further, disturbing the said sale may  negatively affect innocent purchasers for value who  bought the same.

16. Subsequent to the above events the  Claimant/Respondent has obtained other warrants of  attachment and seized motor vehicles KCP 050K and KCD  311G belonging to the Respondent/Applicant prompting  the Respondent/applicant to file this instant application.

17. The Respondent/Applicant has annexed the two warrants  of attachment dated 29th October, 2021 for Kshs.1,  784,690. 24 and the other dated 8th November, 2021 for  Kshs.1,930,208. 21.

18. In Paragraphs 30, 31 and 32 of the replying affidavit the  Claimant/Respondent explains that the second warrant of  attachment was issued to replace the first set in  rectification of an error in calculating the interest due.   However, there is no indication whatsoever that the error  in terms of the costs payable to the Claimant/Respondent  was ever rectified.

19. The Claimant’s/Respondent’s counsel in the written  submission takes a rather strange position that there is  nothing wrong  with the Claimant/Respondent recovering  100% of the costs which is contrary to the 50% awarded in  the judgment.  He takes the view that the same can only  be set aside by way of reference before a judge.  This is  wrong and a misapprehension of the law as the DR did not  award the Claimant/Applicant 100% of the costs as that  would have been contrary to the clear orders in the  judgment. The Claimant/Respondent is not forthright on  this issue.

20. It is on the basis of this erroneous calculation on the costs  and interest thereon that the Claimant/Respondent has now  obtained new warrants of attachment in execution of the  judgment/decree and seized the motor vehicles KCP 050K  and KCD 311G belonging to the Respondent/Applicant.

21. As noted above the warrants of attachment originally  issued by the court leading to the attachment and sale by  public auction of Respondent’s/Applicant’s motor vehicles  KAL 688U and KCE 099A were issued in error and the  court has reluctantly desisted from setting aside that entire  process for the reasons given above but not to sanitize a  clearly wrongful and unprocedural process. There was a  clear abuse of court process based on deliberate or  erroneous, and misleading misapprehension of the law.

22. If the first warrants of attachment and the entire process  leading to the sale of the motor vehicles by public auction  was infested with illegalities and errors and hence  unlawful, and this court finds and holds so, then there is no  way that the new warrants of attachment can be proper and  lawful without the original error being rectified first.

23. The foremost duty of this court is to ensure that justice is  done to all parties at all times. That is the principal  objective of this court as set out in Section 3 of the  Employment and Labour Relations Court Act No. 20 of  2011. This duty of the court is further magnified in  Sections 1A, 1B and 3A of the Civil Procedure Act (Cap  21) and Article 159(2)(d)(e) of the Constitution of   Kenya.

24. This court has found above and holds that the warrants of  attachment leading to the seizing of  Respondent’s/Applicant’s motor vehicles KCP 050K and  KCD 311G were issued based on erroneous calculations of  the amount due flowing from the original warrants of  attachment which were also issued on misconceived and  erroneous calculation of the amounts due and payable to  the Claimant/Respondent.  This court has inherent powers  and duty to ensure that justice is done at all times to all the  parties who appear before it.  The provisions of the law  cited above grant this court powers to intervene and stop,  set aside, and vacate an illegality at the earliest  opportunity.

25. This court finds and holds that the attachment and seizing of the Respondent’s/Applicant’s motor vehicles KCP 050K and KCD 311G by the Auctioneers, who  are agents of the Claimant/Respondent is illegal, null and  void as the warrants of attachment giving rise to the same  are unlawful.  The said warrants of attachment are hereby  set aside and nullified.

IV. RETENTION OF KSHS.451,265 BY THE AUCTIONEERS

26. The Respondent/Applicant has vehemently prayed that it is  unlawful for the Auctioneer to hold a sum of   Kshs.451,265/=  from the first sale allegedly as fees for  work done. On the other  hand the Claimant/Respondent  argues that the Auctioneer had a  right to withhold the  amount as their fees. However, it is important to note that  the warrants of attachment and sale were in respect of  decretal sum plus costs. The Auctioneer’s fee was not part  of the amounts in the warrants of attachment. This court  has stated elsewhere that the said warrants were issued in  error for failure to reflect the accurate amount that was due  and payable.

27. The Auctioneers, for all intents and purposes, are in this  cause acting as authorized agents of the  Claimant/Respondent but sanctioned by the court.  There  is nothing that would have prevented the  Claimant/Respondent to alert the Auctioneers to respond to  this application even though not served.  However, the  court shall proceed on the basis that the Auctioneer were  not served and hence did not participate in these  proceedings.

28. This court has carefully examined the submissions and  counter-submissions of both counsel on this issue and the  authorities  cited. There is no dispute that an auctioneer is  entitled to fees for work done and that is the law under the  Auctioneers Act No. 5 of 1996and the rules thereunder.   However, what should happen where a dispute arises as to  the fees payable to an Auctioneer?  Or where it has not  been ascertained as to who should pay such fees?

29. On the one hand the Respondent/Applicant is urging that  the retention of the said sum is illegal and that it is also in  excess of the fees payable to the Auctioneers. On the other  hand the Claimant/Respondent takes the view that the  retention is lawful and that the fees as raised by the  Auctioneers is correct.

30. This court holds that the only way the Auctioneer’s fees  may be determined, now that it is a contested issue, is for  the  Auctioneers to file an itemised bill that shall be  assessed and a ruling issued. It is important to note that  Auctioneers fees and costs are costs in the cause that arise  once the work is done.

31. Flowing from the foregoing, while an Auctioneer may  retain some money as fees, see LABHSONS LIMITED  VS MONURA HAULIERS LTD (2004) eKLR,once  such fees is contested an itemized bill of the fees ought to  be filed in court for assessment and this court directs the  Auctioneers to file an itemized bill of their fees for  assessment within seven (7) days of this ruling.

32. Pending the assessment of the Auctioneers fees the  withheld amount of Kshs.451,265/= shall be taken into  account when calculating the amount now due and  payable from the Respondent/Applicant to the  Claimant/Respondent.

V. AMOUNT DUE AND PAYABLE

33. The parties have differed on the balance now due and  payable by the Respondent/Applicant to the  Claimant/Respondent. While the Respondent/Applicant   puts the balance at Kshs.1,228,018. 24 the  Claimant/Respondent puts the balance at  Kshs.2,757,826. 12 making this a contested issue.  This  court will not sit and calculate the amount due.  Instead the  court shall issue guidelines on how the parties shall  calculate the amounts due and file their tabulations within  seven (7) days of this ruling:-

(i) There is no contest that the Claimant/Respondent   was  awarded Kshs.2,301,384. 80 in the judgment   dated and delivered on 18th July, 2019 and that   should be the foundation of the calculations.

(ii) The Claimant/Respondent was awarded half (½)  or 50% of  the costs of the cause. The costs were  assessed at Kshs.206,913/= and hence the  Claimant/Respondent is entitled to 50% of that  amount which is Kshs.103,456. 50.

(iii) The total in (i) and (ii) above should be added and   interest thereon calculated at the court rates.

(iv) However, the amount so far paid shall be the entire  amount realized out of the first sale being  Kshs.1,540,000/= and that is the sum that should  be presumed to have been recovered so far.

34. Counsel for both parties should have no problem at all in  arriving at the correct and same answer for the above   arithmetic exercise.

VI. COSTS

35. On the issues of costs of this application each party shall   meet  own costs.

VII DISPOSAL

36. This court gives the following orders in respect of the    Notice of motion dated 17th November, 2021.

1. THAT the Claimant/Respondent by himself, his  agents M/S DIRECT “O” AUCTIONEERS, servants,  and or others howsoever be and is hereby ordered to  UNCONDITIONALLY  release motor vehicles KCP  050K and  KCD 311G to the Respondent/Applicant,  and in any event within 24 hours of this ruling.

2. THAT the warrants of attachment and proclamation  in respect of the said motor vehicles be and is hereby  lifted, set aside, and declared null and void as the  same was issued in error without reflecting the  correct amounts due and payable by the  Respondent/Applicant to the Claimant/Respondent.

3. THAT counsel for the parties do now calculate  the amount due by the Respondent/Applicant to the  Claimant/Respondent based on the directions given  by this court in this ruling and file their respective  tabulation and calculations in court, within seven (7)  days of this ruling.

4. THAT the sum of Kshs.451,265 withheld by the  Auctioneers be taken into account as payment   towards the decretal sum.

5. THAT M/S DIRECT “O” AUCTIONEERS are  hereby ordered to file an itemized bill of their fees in  the attachment and sale by public auction of motor  vehicles KAL 688U and KCE 099A.

6. THAT a stay of execution be and is hereby issued in  this cause pending further orders of this court.

7. THAT the Respondent/Applicant do serve a copy of  this ruling upon M/S DIRECT “O” AUCTIONEERS   immediately upon delivery of this ruling.

8. THAT each party shall meet own costs of this  application.

DATED AT NAKURU AND DELIVERED VIRTUALLY THIS 15TH DAY OF FEBRUARY, 2022.

.............................

DAVID NDERITU

JUDGE

Nderitu Komu for Claimant/Respondent

Murimi for Respondent/Applicant

Court Assistant - Mercy