Benard v Shree Hari Plaza Limited (Hari Krishna Impex) & another [2025] KEELRC 3656 (KLR)

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NYERI MISCELLANEOUS APPLICATION NO E018 OF 2023 ONGERE KABA BENARD………………………………………………………………..APPLICANT VS SHREE HARI PLAZA LIMITED (HARI KRISHNA IMPEX)………………………………………………….…….1ST RESPONDENT DIRECTORATE OF OCCUPATIONAL SAFETY AND HEALTH SERVICES………………………………………………………..2ND RESPONDENT R U L I N G 1. This ruling determines the Notice of Motion dated 29th May 2025, by which the 1st Respondent seeks orders to quash the Warrants of Attachment issued to Mamalo Auctioneers on 20th May 2025 and the proclamation effected on 27th May 2025. 2. The 1st Respondent further seeks a declaration that the claim herein is fully settled and asks the Court to reassess the interest and additional costs payable. 3. The application is supported by an affidavit sworn by Cheryl Odipo and is based on the following grounds: a) That the Applicant obtained a ruling in his favour on 26th July 2024 in the sum of Kshs. 268,000; 1 b) That the sum awarded by the Director of Occupational Safety and Health Services, the Applicant’s costs and accrued interest were paid to the Applicant through his Advocates; c) That on 9th November 2023, the sum of Kshs. 86,400 was paid to the Applicant; d) That on 16th August 2024, the 1st Respondent paid the sum of Kshs. 272,275 to the Applicant, through the firm of Mwakio Kirwa and Company Advocates; e) That the 1st Respondent has since paid the entire decretal sum amounting to Kshs. 358,675 broken down as follows: Assessment by the Director Kshs. 268,000 Less sum already paid (86,400) Add costs as assessed 60,675 Add accrued interest 30,000 Total 272,275 f) That despite full and final settlement, the Applicant has proceeded to take out Warrants of Attachment and through Mamalo Auctioneers, proclaimed the 1st Respondent’s goods; g) That in the Warrants of Attachment, the Applicant has misrepresented that only a sum of Kshs. 114,840 has been paid whereas the sum of Kshs. 358,675 has been paid; 2 h) That the Applicant, through his Advocates on record, was duly advised of payment of the entire decretal sum, on 21st August 2024; i) That the Applicant erroneously seeks to reap interest over sums that had already been paid; j) That the decretal sum having been paid in full, there is no decree to execute and the Warrants of Attachment and the proclamation are illegal and irregular; k) That the attachment and proclamation is therefore an attempt by the Applicant to unjustly enrich himself and is an abuse of the court process; l) That it would amount to double jeopardy and breach of the 1st Respondent’s rights to be required to settle the decretal sum twice. 4. The Applicant opposes the application by his replying affidavit sworn on 13th June 2025. He terms the application as incompetent and an abuse of the court process. 5. The Applicant depones that, while working for the 1st Respondent, he sustained injuries on 18th April 2022. 6. The 1st Respondent issued notification of the accident to the 2nd Respondent vide DOSH Form 1 and the 2nd Respondent made an award of Kshs. 268,000 in the Applicant’s favour. 7. The Applicant states that the 2nd Respondent issued a demand notice to the 1st Respondent on 23rd September 2023 to settle the award. 3 8. The 1st Respondent is said to have failed to comply, prompting the Applicant to file an application for enforcement of the award, and on 3rd October 2023, the Court entered judgment in favour of the Applicant in the sum of Kshs. 268,000 plus costs and interest from the assessment date until payment in full. 9. The Applicant depones that costs were assessed at Kshs. 60,675. According to him, the total outstanding amount was as follows: Decretal sum Kshs. 268,000 Costs 60,765 Interest from 23/9/2022 68,786 Total 397,461 10.The Applicant concedes having received Kshs. 86,400 on 9th November 2023, as part payment. A further payment of Kshs. 272,275 was made on 16th August 2024. 11. The Applicant points out that the 1st Respondent subsequently filed an application dated 14th November 2023, seeking to set aside the judgment of 3rd October 2023. 12.The application dated 14th November 2023, was dismissed with costs on 26th July 2024, giving rise to a second Party and Party Bill of Costs dated 4th September 2024, which was taxed at Kshs. 93,920. 13.The Applicant asserts that the 1st Respondent is indebted to him to the tune of Kshs. 132,676 which he claims together with Auctioneers costs. 4 14.A reading of the pleadings and submissions filed by the 1st Respondent in this application reveals two things; first, that there was an underpayment of the decretal sum, which the 1st Respondent refers to as an arithmetical error; and second, that there was a subsequent Party and Party Bill of Costs arising from a post judgment application, which was taxed at Kshs. 93,920. 15.The 1st Respondent’s complaint is that the award of costs in the second Bill of Costs is too high but there is no evidence of any reference filed to challenge the decision of the Taxing Master. 16.That being the case, I have no basis to reopen the Bill of Costs at this stage and with the admission by the 1st Respondent that there is an unpaid portion of the decretal sum, the present application is without merit and is dismissed with costs to the Applicant. 17.The interim orders granted on 26th June 2025 are vacated. 18.Orders accordingly. DELIVERED VIRTUALLY THIS 17TH DAY DECEMBER 2025 Appearance: Mr. Ng’ang’a for the Applicant Mr. Kirwa for the Respondent LINNET NDOLO JUDGE 5