[2018] KEELRC 999 (KLR)
The court found that the respondent had not demonstrated compliance with the judgment by applying the decretal sum of Kshs.1,518,276 to the outstanding staff loan and had not communicated the outstanding balance and new repayment terms to the applicant. Until such compliance and communication occur, the respondent...
Source-derived case information.
- Citation
- [2018] KEELRC 999 (KLR)
- Parties
- Applicant: Beatrice Omiti; Respondent: Kenya Commercial Bank Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 334 of 2013
- Procedural Posture
- Stay Application / Ruling on Application for Stay and Injunction Pending Appeal
- Outcome
- application allowed
- Judges
- MN Nduma
- Legal Topics
- Employee Loans, Injunctive Relief, Stay of Execution, Decretal Sum Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beatrice Omiti
Applicant
Kenya Commercial Bank Limited
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay and Injunction Pending Appeal
Legal Issues
- 1 Whether the respondent is entitled to realize the security before applying the decretal sum to the outstanding loan as per the judgment.
- 2 Whether an injunction should issue restraining the respondent from distressing, repossessing, or realizing the security pending compliance with the judgment and communication to the applicant.
- 3 Whether the respondent has complied with the judgment by applying the decretal sum and communicating the outstanding balance and repayment terms to the applicant.
Ratio Decidendi
The court found that the respondent had not demonstrated compliance with the judgment by applying the decretal sum of Kshs.1,518,276 to the outstanding staff loan and had not communicated the outstanding balance and new repayment terms to the applicant. Until such compliance and communication occur, the respondent lacks bona fides to move and realize the security against the applicant. The court held that the injunction restraining the respondent from distressing, repossessing, or realizing the security should remain in place until the judgment is fully complied with and proper communication is made to the applicant. The respondent is also liable for the costs of the application.
Court Disposition
application allowed
Orders
- The respondent is restrained from distressing, repossessing, or realizing the security under property No. E/Bukusu/S. Kanduyi/2363 registered in the name of Beatrice Eshirama Omiti.
- The injunction remains in place until the respondent fully complies with the judgment and communicates the balance and repayment terms to the applicant.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
CAUSE NO. 334 OF 2013
(Before Hon. Justice Mathews N. Nduma)
BEATRICE OMITI........................................................CLAIMANT
VERSUS
KENYA COMMERCIAL BANK LIMITED.........RESPONDENT
R U L I N G
1. The substantive suit was heard and determined in a judgment delivered on 22nd September, 2017, in which the court awarded the Applicant maximum compensation of 12 months gross salary in the sum of Kshs.1,518,276 and allowed the Respondent Bank to apply the decretal sum to offset the debt owed to it by the applicant.
2. The decretal amount in the aforesaid judgment was not sufficient to settle the debt owed to the Respondent.
3. The Loan has fallen in arrears and the Respondent has moved to distress, repossess and realize the security under property No. E/Bukusu/S. Kanduyi/2363 registered in the name of the applicant Beatrice Eshirama Omiti.
4. The Application for stay is sought pending hearing and determination of Intended appeals (emphasis mine). There is no Notice of Appeal attached to the Notice of Motion filed on 26th February, 2018.
5. The Applicant states that both parties are dissatisfied with the judgment of the court and intend to appeal.
6. The Respondent filed a Notice of Appeal dated 29th September, 2017 but has not obtained a stay of execution pending Appeal.
7. The Claimant/Applicant has not attached a Notice of Appeal to the application.
8. The court has carefully considered the facts of the case deposed in the Notice of Motion and supporting affidavit and in the replying affidavit of the Respondent filed on 4th July, 2018 and grounds of opposition dated 2nd May, 2018 and has come to the following conclusions of fact –
i. The Respondent has not disclosed whether or not it has applied the decretal amount of Kshs.1,518,276 to pay the loan and if it did so, what is the balance of the amount due and how monthly instalments ought to be paid upon taking into account, the lumpsum decretal sum of Kshs.1,518,276. The court notes that the initial loan was Kshs.2,130,000.
ii. Provided the Respondent has failed to apply the decretal sum to the staff loan and advised the Claimant/Applicant on the outstanding balance and how it ought to be disposed of, the court is still seized of the matter until its judgment is fully complied with and/or a stay of execution is obtained pending the intended appeal by the Respondent and cross appeal by the Applicant.
iii. Until the full decretal sum has been applied and communication is made to the Applicant, the injunction issued by the court during the pendency of the suit for the loan to be paid on the favourable staff interest rate apply to the staff loan.
iv. Whereas the Applicant is obliged to repay the loan at staff rates including the application of the decretal sum, those favourable terms cease to apply once the suit has been determined and the judgment sum fully applied.
v. Provided the Respondent has not applied the Judgment sum on the loan, and has not obtained an injunction from the court pending the hearing and determination of the appeal, it lacks any bonafides to move and realize the security against the Applicant.
9. To that extent,
a. The Respondent is restrained from distressing, repossessing and or realizing the security under property No.E/Bukusu/S. Kanduyi/2363 registered in the name of Beatrice Eshirama Omiti.
b. The injunction is to remain in place, until the Respondent bank has fully complied with the terms of the Judgment by Maureen Onyango J. delivered on 22nd September, 2017 and communicated to the Claimant/Applicant the balance and the terms of the loan repayment upon application of the full decretal sum.
c. For purposes of the repayment, time starts to run for the purpose of repayment on new terms from the date of the application of the Judgment sum on the loan and upon proper communication to the Claimant/Applicant.
d. The Respondent to pay costs of the application.
Ruling Dated, Signed and delivered this 4th day of October, 2018
Mathews N. Nduma
Judge
Appearances
M/s. Namatsi for Claimant /Applicant
Mr. Owiti for Respondent
Chrispo – Court Clerk