Wachiuri v Kaisugu Limited (Cause E010 of 2023) [2025] KEELRC 3768 (KLR) (11 November 2025) (Ruling)
Neutral citation:
[2025] KEELRC 3768 (KLR)
Republic of Kenya
Cause E010 of 2023
AN Mwaure, J
November 11, 2025
Between
Jeniffer Muthoni Wachiuri
Claimant
and
Kaisugu Limited
Respondent
Ruling
Introduction
1.The Respondent/Applicant filed a Notice of Motion dated 11th June 2025 under Certificate of Urgency seeking the following orders that:1.Spent2.This Honourable Court be pleased to issue a Stay of execution of the decree and certificate of taxed costs arising from the judgment of this Honourable Court delivered on 23rd July 2024 by Hon. Justice Wasilwa and the ruling of Hon. Japheth Cheruiyot Bii dated and delivered on 2nd April 2025 pending the hearing and determination of this application.3.This Honourable Court be pleased to issue a Stay of Execution of the decree and certificate of taxed costs arising from the judgment of this Honourable Court delivered on 23rd July 2024 by Hon. Japheth Cheruiyot Bii, dated and delivered on 2nd April 2025, pending the hearing and determination of the reference dated 4th April 2025.4.This Honourable Court be pleased to review and vary the Judgment delivered by Hon. Justice Hellen Wasilwa on 23rd July 2024 to provide clarification on the computation of the award after accounting for applicable statutory deduction5.This Honourable Court be pleased to set aside the warrant of attachment and sale of moveable property in execution of a decree for money given on 11th June 2025 and issued to Hegeons Auctioneers.6.Cost of this application be provided for.
2.The application is expressed to be brought under Rule 33(1)(a) of the Employment & Labour Relations Court (Procedure) Rules 2016, sections 1A, 1B and 3A of the Civil Procedure Act, Order 22 Rule 22 and Order 45 Rule 1 of the Civil Procedure Rules.
Respondent/Applicant’s Supporting Affidavit
3.The application is supported by the affidavit sworn by Mutai K. Owen, the Respondent/Applicant’s Advocate, dated the same date as the application.
4.The Respondent/Applicant avers that following a judgment delivered on 23rd July 2024 by Hon. Justice Hellen Wasilwa, awarding the Respondent eight months’ gross salary totalling Kshs.1,795,856/=, subject to statutory deductions.
5.In good faith, the Respondent/Applicant avers that it remitted a net amount of Kshs.557,716.67/=, with no objection raised by the Respondent at the time.
6.Subsequently, the Respondent/Applicant avers that it filed a Party-to-Party Bill of Costs, which was taxed and ruled upon on 2nd April 2025.
7.Dissatisfied, the Respondent/Applicant avers that it filed a Notice of Objection and a Reference, both pending determination.
8.Meanwhile, the Respondent/Applicant avers that the Claimant/Respondent initiated execution through Hegeons Auctioneers based on a misinterpretation of the judgment, ignoring statutory deductions.
9.The Respondent/Applicant contends that this execution risks substantial and irreparable harm, and seeks a stay and review of the judgment’s computation.
10.The Respondent/Applicant avers that the application is made promptly and in good faith, with no undue prejudice to the Claimant/Respondent, and is necessary to serve the interests of justice, allowing the application as prayed.
Claimant/Respondent’s Replying Affidavit
11.The Claimant/Respondent filed a Replying Affidavit dated 20th June 2025.
12.The Claimant/Respondent opposes the Respondent/Applicant’s application seeking a stay of execution, review, and setting aside of the warrant of attachment, arguing that the application lacks merit and is legally flawed.
13.The Claimant/Respondent avers that the judgment delivered on 23rd July 2024 awarded her Kshs.1,795,856/= (less statutory deductions), plus taxed costs of Kshs.314,650 and interest, but the Respondent/Applicant unlawfully reduced the award to Kshs.800,000/= and remitted only Kshs.557,716.67/=.
14.Despite being notified of the miscalculation via letter and email in September 2024, the Claimant/Applicant avers that the Respondent/Applicant ignored the correction.
15.Consequently, the Claimant/Respondent avers that she lawfully instructed Hegeons Auctioneers to execute the decree, as no stay order was in place.
16.The Claimant/Respondent maintains that the warrant issued on 11th June 2025 correctly reflected the judgment and statutory deductions, and any grievances should have been pursued through an appeal, not review.
17.The Claimant/Respondent urges the court to dismiss the application with costs, deeming it an abuse of process and a threat to justice.
18.Parties canvassed the application by way of written submissions.
Respondent/Applicant’s Submissions
19.The Respondent/Applicant submitted that it is seeking a review under Rule 74(1)(c) and (d) of the Employment and Labour Relations Court (Procedure) Rules, 2024, citing a patent error in the execution of a judgment awarding the Claimant/Respondent eight months’ salary “less statutory deductions.” While it paid the net amount of Kshs. 557,716.67, the Claimant/Respondent initiated execution for the gross sum of Kshs.1,795,856/=, prompting warrants of attachment. This discrepancy, stemming from differing interpretations of the judgment, risks double payment and unjust enrichment.
20.The Respondent/Applicant submitted that the execution based on an erroneous decree is unlawful, referencing the cases of Commercial Bank of Africa Ltd -v- Isaac Kamau Ndirangu [1990–1994] EA 69 and Machira & Co. Advocates v Magugu [2002] 2 EA 428, emphasizes that the pending reference under Paragraph 11 of the Advocates (Remuneration) Order further invalidates the warrants.
21.The Respondent/Applicant invoked Order 22 Rule 22 of the Civil Procedure Rules, urging the Court to clarify the judgment and set aside the warrants to prevent irreparable prejudice and ensure proper execution.
22.The Respondent/Applicant urged that this court allow the application for stay of execution and review/vary as prayed.
Claimant/Respondent’s Submissions
23.The Claimant/Respondent submitted that the Respondent/Applicant has not met the legal threshold for stay of execution under Order 22, Rule 22 of the Civil Procedure Rules, which requires sufficient cause and, where necessary, provision of security. Although the Claimant/Applicant acknowledges the judgment by Hon. Justice Hellen Wasilwa and admits to paying less than the awarded amount, they have failed to demonstrate any substantial or irreparable loss that would justify a stay. The Claimant/Respondent relied on the case of Clement Wekesa Muuyi & Another v Patrick Wekesa Okumu (sued as representative of the Estate of Okumu Masai (Deceased) [2019] KEELC 628 (KLR), emphasizing that mere allegations of loss are insufficient without specific evidence. Furthermore, the Respondent/Applicant did not offer to deposit the disputed amount as security, either in court or a joint interest-earning account, thereby failing to comply with the conditions required for a stay of execution.
24.The Claimant/Respondent Submitted that the Respondent/Applicant’s request for review fails to meet the legal threshold under Rule 33(c) of the Employment and Labour Relations Court Rules 2016 and Order 45 Rule 1 of the Civil Procedure Rules, which permit review only in cases of new evidence, error on the face of the record, need for clarification, or other sufficient reason.
25.The Claimant/Respondent relied on the cases of Paul Mwaniki v NHIF [2020] KEHC 7414 and Gakibe v Ngumba & 4 others [2023] KECA 1420, emphasizing that review is not meant for re-arguing or correcting perceived errors unless they are glaring and self-evident. The Respondent/Applicant’s reason for review seeking clarification on the computation lacks merit, as the statutory deductions were already addressed in the court’s warrant of attachment dated 11th June 2025. Moreover, the application was filed eleven months after judgment without justification for the delay.
26.The Claimant/Respondent urges the court to dismiss the application with costs, deeming it frivolous and a misuse of judicial time.
Analysis and determination
27.The court has considered the application, the replying affidavit, together with the submissions; the issue for determination is whether the application is merited.
28.Order 42 Rule 6(2) of the Civil Procedure Rules provides as follows:
29.From the above-mentioned provision, the stay execution needs to fulfil three requirements, which are as follows:a.The application should be made without unreasonable delayb.There is a substantial loss on the part of the applicant if the orders are not madec.Security performance.
30.On unreasonable delay, the judgment was delivered by Lady Justice Hellen Wasilwa on 23rd July 2024, and the application was dated 11th June 2025, which was filed almost a year later. The court is of the view that the application was not filed within a reasonable time.
31.On substantial loss, the court relied on the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR), where the court held as follows:
32.In this instant case, the Respondent/Applicant avers that the Claimant/Respondent has obtained and served warrants of attachment and sale of moveable property together with proclamation notices dated 11th June 2025. The court is of the view that the Respondent/Applicant has not fully satisfied this court on how it will suffer if the warrant of attachment and sale of moveable property is sold.
33.On security, the court relied on the case of Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya) [2015] KECA 353 (KLR), where the Court of Appeal cited the case of Kenya Hotel Properties Limited v Willesden Properties Limited Civil Application Nai. No. 322 of 2006 (UR 178/06) stated thus: -
34.In this instant case, the Respondent/Applicant, in its supporting affidavit, has not offered any form of security and neither has he proposed depositing the decretal sum in a joint earning interest account in both names of the parties. The court is of the view that the Respondent/Applicant has not offered any security.
35.For review, the court is guided by Rule 74(1) of the Employment Labour Relations Court (Procedure) Rules, which provides as follows:
36.In this instant case, the Respondent/Applicant seeks clarification on the computation of the award after accounting for applicable statutory deduction. In Local Authorities Provident Fund Board v County Government of Kisii & another [2022] KEELRC 13168 (KLR), the court cited the case of Co-Operative Bank of Kenya Ltd v Erastus Kihara Mureithi [2013] KEHC 4096 (KLR) the court stated as follows:
37.The court is of the view that, on the interpretation of statutory deduction, once the court awarded the Claimant/Respondent Kshs.1,795,856/=, it was the obligation of the Respondent to remit the statutory deductions, which include SHIF, NSSF, and PAYE. In the alternative, when an employer fails to remit statutory deductions from an employee’s salary, the law allows the court to intervene by directing the employer to both refund the deducted amount to the employee and to pay the owed sum to the rightful recipient using the employer’s own resources. This ensures accountability and protects employees from financial prejudice caused by the employer’s non-compliance. The trial taxing Master considered the decretal sum while taxing the bill.
38.Flowing from the foregoing, the court finds the application dated 11th June 2025 is not merited as the Taxing Master worked with the decretal sum as awarded by the ELRC Judges. The court states and orders: -a.The prayer for stay of execution of the decree is not allowed as the principles required to be met pending granting of stay have not satisfied.b.On the prayer for review of the Honourable Judge’s judgment the court finds there is no error or new evidence adduced to justify the review application or to set it aside and so the same is NOT granted.c.The judgment of Justice Hellen Wasilwa is not ambiguous and provides clearly that the award was Kshs.1.795,856/= less statutory deductions. The outstanding amount is therefore less the statutory deductions as per the decree dated 11th June 2025 and that is as it should be.
39.Each party will meet their own costs.Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 11TH DAY OF NOVEMBER, 2025.................................................ANNA NGIBUINI MWAUREJUDGEOrderIn view of the declaration of measures restricting Court operations due to the Covid-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.A signed copy will be availed to each party upon payment of Court fees.ANNA NGIBUINI MWAUREJUDGE