[2020] KEELRC 304 (KLR)
The court found that the respondents had ample time to settle the judgment debt before the onset of the Covid-19 pandemic and that the notice of appeal filed by the claimant did not amount to a stay of execution. The respondents' proposal to begin payment by instalments several months after the application was filed...
Source-derived case information.
- Citation
- [2020] KEELRC 304 (KLR)
- Parties
- Applicant: David Kabori Rimberia; Respondent: Summit Cove Lines Company Ltd; Respondent: Joseph Muthama Kirema
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 115 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Payment of Decretal Sum by Instalments
- Outcome
- application declined
- Judges
- J Rika
- Legal Topics
- Execution of Judgment, Payment by Instalments, Stay of Execution, Delay in Settlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Kabori Rimberia
Applicant
Summit Cove Lines Company Ltd
Respondent
Joseph Muthama Kirema
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Payment of Decretal Sum by Instalments
Legal Issues
- 1 Whether the respondents should be allowed to liquidate the decretal sum by instalments.
- 2 Whether the notice of appeal filed by the claimant operates as a stay of execution.
- 3 Whether the respondents' business hardship due to Covid-19 justifies delay in settlement of the judgment debt.
Ratio Decidendi
The court found that the respondents had ample time to settle the judgment debt before the onset of the Covid-19 pandemic and that the notice of appeal filed by the claimant did not amount to a stay of execution. The respondents' proposal to begin payment by instalments several months after the application was filed would further delay the claimant's right to expeditious justice. The court held that the respondents failed to demonstrate sufficient cause to warrant payment by instalments, especially given the age of the claim and the absence of any stay of execution. The application was therefore declined to uphold the claimant's right to timely enforcement of the judgment.
Court Disposition
application declined
Orders
- The application filed by the respondents on 17th September, 2020 is declined.
- No order on the costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT
AT MOMBASA
CAUSE NUMBER 115 OF 2012
BETWEEN
DAVID KABORI RIMBERIA...............................................CLAIMANT
VERSUS
SUMMIT COVE LINES COMPANY LTD..............1ST RESPONDENT
JOSEPH MUTHAMA KIREMA..............................2ND RESPONDENT
Rika J
Court Assistant: Andrew Mwabanga
Akanga Alera & Associates Advocates for the Claimant
Mokaya Ogutu & Company Advocates for the Respondents
RULING
1. Judgment was delivered in favour of the Claimant, in the sum of Kshs. 700,000, on 28th March, 2019.
2. The Respondents filed an Application on 17th September, 2020, asking to be allowed to liquidate the decretal sum, in instalment, of Kshs. 100,000, effective 15th January, 2021.
3. The Application is based on the Affidavit of the 2nd Respondent herein, Joseph Muthama Kirema, sworn on 16th September, 2020.
4. Kirema explains that the Claimant filed a Notice of Appeal against the Judgment, but has not taken steps to prosecute the Appeal. The Respondents were surprised to receive warrants of attachment from the Claimant, on 14th September, 2020. The Respondents are willing to meet the decree, but their cargo transportation business, has been adversely affected by Covid-19 pandemic.
5. The Court has not traced any response to the Application, filed by the Claimant. On 8th October, 2020, Parties were directed to file Submissions, and the Application to be considered on the strength of the record. They filed their respective Submissions on 19th October, 2020.
The Court Finds: -
6. Judgment was delivered over one year ago, some months before the emergence of Covid-19 pandemic.
7. The Respondents would have met the decree in full by October, 2019, if they paid instalments of Kshs. 100,000 monthly. That is, before the emergence of Covid-19.
8. The Notice of Appeal filed by the Claimant, did not amount to an order for stay of execution. It did not affect the Respondents’ obligation under the Judgment.
9. The Claim was filed in 2012 – 8 years ago. Settlement must not be delayed. By proposing to start payment in January, 2021, the Respondents are asking this Court to ignore the Claimant’s right to fair and expeditious administration of justice. There should be no further delay.
IT IS ORDERED: -
a. The Application filed by the Respondents on 17th September, 2020 is declined.
b. No order on the costs.
Dated and delivered at Mombasa this 26th day of October, 2020.
James Rika
Judge