[2019] KEELRC 136 (KLR)
The court held that committal to civil jail should only be considered after the decree-holder has attempted and failed to execute the judgment through the normal modes, such as attachment and sale of the judgment debtor's assets. Since the Claimant had not demonstrated any attempt to execute the decree by...
Source-derived case information.
- Citation
- [2019] KEELRC 136 (KLR)
- Parties
- Claimant: Elijah Opondo Ochiel; Respondent: Samson Mijoro; Respondent: Benson Ochieng; Respondent: Colmans Owino
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 113 of 2019
- Procedural Posture
- Employment Cause / Ruling on Application for Committal to Civil Jail
- Outcome
- application dismissed
- Judges
- MSA Makhandia
- Legal Topics
- Salary Arrears, Court Order Enforcement, Civil Jail, Execution of Decrees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elijah Opondo Ochiel
Claimant
Samson Mijoro
Respondent
Benson Ochieng
Respondent
Colmans Owino
Respondent
Procedural Posture
Employment Cause / Ruling on Application for Committal to Civil Jail
Legal Issues
- 1 Whether the Respondents should be committed to civil jail for failure to comply with a court order to pay salary arrears and remit PAYE deductions.
- 2 Whether the Claimant exhausted other modes of execution before seeking committal to civil jail.
Ratio Decidendi
The court held that committal to civil jail should only be considered after the decree-holder has attempted and failed to execute the judgment through the normal modes, such as attachment and sale of the judgment debtor's assets. Since the Claimant had not demonstrated any attempt to execute the decree by attachment, the court found that it would not be in the interest of justice to commit the Respondents to civil jail at this stage. The application was therefore dismissed.
Court Disposition
application dismissed
Orders
- The application to commit the Respondents to civil jail is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 113 OF 2019
ELIJAH OPONDO OCHIEL CLAIMANT
V
SAMSON MIJORO 1ST RESPONDENT
BENSON OCHIENG 2ND RESPONDENT
COLMANS OWINO 3RD RESPONDENT
RULING
1. On 13 March 2019, the Court allowed an application by the Claimant and ordered the Respondents to pay him salary arrears of Kshs 349,290/-.
2. The Respondents were also directed to remit Pay As You Earn tax deductions of Kshs 336,989/- to the Kenya Revenue Authority.
3. The Court set timelines for the payments but the Respondents did not comply.
4. On 30 April 2019, the Claimant moved the Court seeking an order committing the Respondents to civil jail for disobeying the Court orders.
5. The 3rd Respondent filed a replying affidavit in opposition to the application on 25 October 2019, and the Court heard arguments on 18 November 2019.
6. The Court reserved Ruling to 29 November 2019 but did not deliver the Ruling because the Respondents informed the Court just before the delivery of the Ruling that they had made a payment of Kshs 60,000/- and committed to pay the balance of Kshs 70,000/- within 2 weeks.
7. However, on 16 December 2019, the Claimant’s advocate informed the Court that the balance had not been paid hence this Ruling.
8. It is not disputed that the Respondents initially paid the Claimant Kshs 200,000/- out of the Kshs 349,290/- of the salary arrears leaving a balance of Kshs 149,290/- (another payment of Kshs 60,000/- was made on 18 November 2019).
9. The Respondents have also not remitted the PAYE arrears to the Kenya Revenue Authority.
10. The Claimant now wants to the Court to commit the Respondents to civil jail for not complying fully with the Court order.
11. There are several modes of executing a money order of Court. These include execution by attachment and sale of judgment debtor’s assets and committal to civil jail.
12. Ordinarily, the civil jail route should be a last resort mode of execution as the normal mode of executing a decree (including interim decree) is to apply to execute through attachment.
13. Since the Claimant has not demonstrated that he attempted to follow the normal mode of execution without success, it is the view of the Court that sending the Respondents to civil jail would not be in the interest of justice.
14. The application is therefore dismissed with no order on costs.
Delivered, dated and signed in Nairobi on this 19th day of December 2019.
Radido Stephen
Judge
Appearances
For Claimant Mr. Njuguna instructed by Njogu Njuguna & Co. Advocates
For Respondent Mr. Kimathi instructed by Costin & Webster Law
Court Assistant Judy Maina