5.The Applicant submitted on two issues; whether the Preliminary Objection is merited and who should bear costs of the Preliminary Objection.
6.On the first issue it was submitted that Preliminary objection concerns itself with pure points of law as wa held in the locus classicus case if Mukhisa Biscuit Manufacturing Co Ltd V West End Distributors (1969) E A 696.
7.on the above case law, the Applicant submitted that Rule 31 and 32 of the Employment and Labour Relations Court (Procedure) Rules provide for execution of Orders and decree in accordance with execution procedure provided for under the Civil Procedure Rules. He argued that judgement was delivered by the Court on December 16, 2021 in favour of the claimant, however the claimant did not follow the rules on extraction of decree under Order 21 Rule 8 of the Civil Procedure Rules. That warrants of attachment were obtained by the claimant on January 25, 2021 before costs were ascertained in line with section 94 of the Civil Procedure Act.
11.Based on the above, the applicant submitted that the claimant executed the decree and obtained the entire decretal sum of Kshs 670,000, and since the execution were partly done without first ascertaining costs, the right of the claimant to costs were duly waived and he cannot be allowed to have a second bite of the jerry. He prayed for the Preliminary Objection to be allowed with costs to the Applicant.
12.The Respondent submitted on two issues; whether the Preliminary objection was made in bad faith and whether the same is merited.
13.On the first issue, it was submitted that preliminary objection was raised late in the day because the Bill of costs in which the preliminary objection was raised on, is dated January 10, 2022 and the Respondent waited until September 30, 2022, a day before the Bill of costs came for taxation that he raised the Preliminary Objection. He argued that the Applicant has raised this Preliminary Objection to stop Taxation of the Bill of costs which he is entitled to. He argued further that the chronology of the events that led to the filling of this suit is a clear testament of the applicant’s hesitancy on paying the claimant what is due to him
14.On whether the Preliminary Objection is merited, the Respondent submitted that the issues raised in the Preliminary Objection are similar to those raised in the application of February 1, 2022 and that the Applicant has not yet paid interest as intimated in its application. It was argued that the applicant had initially made an application seeking for stay of execution which was granted before execution was completed as such no payment was made pursuant to the Proclamation. He argued further that, the Preliminary objection in so far as it argues the application of Section 94 of the Civil Procedure Act on this matter is res judicata.
15.It was submitted that the execution proceedings which the Applicant is relying on heavily in seeking to have the Bill of Costs dismissed, was declared by this Court to have been irregular and in fact that the decretal sum was not paid as a result of the said Execution proceedings because, the Court had granted stay of execution and within that period, the Applicant paid the decretal sum. He argued thus that since the execution proceedings were declared illegal, the same was void and the Applicant cannot rely on them to object to the taxation of the Claimant/ Respondent’s Bill of costs.
16.The Respondent submitted further that the claimant has not waived his right to costs as is required under the Act. He then urged this Court to be persuaded by their argument and dismiss the Preliminary Objection. He added that the case of Bamburi Portland Cement Company Limited V Imranali Chandbhai Abdulhussein  eklr relied upon by the Applicant can be qualified from the issues raised by the Applicant in the Preliminary object as such unrelated to the matter at hand.
17.I have examined all averments and submissions of the parties herein.
18.Vide an application dated February 1, 2022, this court ordered stay of execution in respect of execution that was set to proceed indicating that it was irregular.
19.The court further directed vide court’s ruling of June 14, 2022 that issues of interest on decretal sum also needed to be determined in totality before proper execution and payment of any monies owing.
20.The ruling of June 14, 2022 in effect stayed execution. In the circumstances, no execution proceeded and the effect was that the claimant reverted to where she was before execution was initiated.
21.By virtue of this position then, the claimant respondent herein was free to commence fresh execution proceedings and even proceed to tax their bill of costs before proceeding further.
22.The contention by the applicant is that the taxation that the claimant has initiated was waived by the process of execution.
23.That would indeed have been true had the applicant not applied to arrest execution which this court allowed.
24.Since no other execution has proceeded, then the respondent claimant is still free to tax their bill of costs before the DR and proceed to execute for any monies owing as the case may be.
25.It is my finding that the preliminary objection then lacks merit as no execution has proceeded since stayed by court.
26.Costs of this application will be for the respondents herein.