[2019] KEELRC 239 (KLR)
The court found that the Respondent failed to provide adequate evidence of its financial position, such as financial statements or records of coffee sales proceeds for the relevant years. Despite claiming financial hardship, the Respondent had received assets from the liquidation of Chuka Farmers Co-operative...
Source-derived case information.
- Citation
- [2019] KEELRC 239 (KLR)
- Parties
- Applicant: Francis Gitonga Murucha & 8 Others; Respondent: The Chairman & Management Committee, Muiru Farmers Co-operative Society Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Cause 53 of 2018
- Procedural Posture
- Stay Application / Ruling on Application for Stay and Payment by Instalments
- Outcome
- application dismissed
- Judges
- AN Makau
- Legal Topics
- Decretal Sum Payment, Stay of Execution, Financial Inability, Salary Arrears, Liquidation of Assets
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Gitonga Murucha & 8 Others
Applicant
The Chairman & Management Committee, Muiru Farmers Co-operative Society Limited
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay and Payment by Instalments
Legal Issues
- 1 Whether the Respondent should be granted a stay of execution of the decretal sum due to financial hardship.
- 2 Whether the Respondent should be allowed to liquidate the decretal sum by annual instalments until payment in full.
- 3 Whether the Respondent has provided sufficient evidence of inability to pay the decretal sum immediately.
Ratio Decidendi
The court found that the Respondent failed to provide adequate evidence of its financial position, such as financial statements or records of coffee sales proceeds for the relevant years. Despite claiming financial hardship, the Respondent had received assets from the liquidation of Chuka Farmers Co-operative Society but did not disclose the value or proceeds from these assets. The court held that the Respondent did not meet the threshold for the grant of stay of execution or payment by instalments, as it did not substantiate its inability to pay the decretal sum. Consequently, the application lacked merit and was dismissed. The Respondent was ordered to pay the decretal sum within two...
Court Disposition
application dismissed
Orders
- The Respondent's application for stay and payment by instalments is dismissed.
- The Respondent shall pay the decretal sum within the next two weeks.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA
AT MERU
CAUSE NO. 53 OF 2018
(Formerly Nyeri ELRC 180 of 2018)
FRANCIS GITONGA MURUCHA &8 OTHERS.................................CLAIMANTS
VERSUS
THE CHAIRMAN &MANAGEMENT COMMITTEE
MUIRU FARMERS CO-OPERATIVE SOCIETY LIMITED..........RESPONDENT
RULING
1. The Respondent/Applicant seeks through the motion dated 24th June 2019 for orders staying the principal sum and interest as the Applicant is in dire financial straits. The Applicant asserts that all efforts to clear the accrued sums being the principal and interest has become impossible. The Respondent urged the court to grant the motion as failure to do so would render it impossible to operate and lead to eventual collapse since it has no collateral such as land to offer. The Respondent thus sought an order that it be allowed to liquidate the decretal sum on or before the 20th day of December each year until payment in full. The Respondent sought the first mention be on 20th December 2019 and subsequent mentions to follow in succeeding years till the decretal sum is paid. The Respondent asserts that the only source of income is coffee sales and urged the court to note it utilizes the properties belonging to the mother co-operative society namely Chuka Farmers Co-operative Society Limited which is currently undergoing liquidation.
2. The Claimants are opposed and filed a replying affidavit sworn by the 1st Claimant on his own behalf and on behalf of the other 8 Claimants. The Claimants assert that upon delivery of judgment the Respondent sought 14 days to enable it pay the decretal sum and that since then they have never bothered to inform the court of any measures taken to pay the claimed sum. The Claimants assert that there are no arrears for the payments for the delivery of coffee cherries. The Claimants deponed that the Respondent was obligated to pay salaries due and not periodically as and when it chooses. It was asserted that there is no merit in the Respondent’s motion which ought to be dismissed and the Chairman committed to civil jail.
3. The motion was argued and the Respondent submitted through Mr. Nyamu that the income from coffee sales is to be apportioned in the ration 20/80 with 20% going to debts and accruals while 80% is for payment of the farmers who deliver cherry. He argued that the 20% covers the current workers and liabilities and the Respondent was constrained financially hence the motion before court. He submitted that if the orders are not granted it would escalate the woes the Respondent faced and would hasten the demise of the Respondent Society. The Claimants responded through the 1st Claimant who stated that the Respondent was not honest as there was no balances on the payment of cherry and that the Respondent had all along argued that it was applying the 80/20 ratio yet no payments were made towards the Claimants. He submitted that from the records of payments made there was payment for coffee twice a year and that the Respondent was allocated land in the liquidation. In reply Mr. Nyamu reiterated the averments of the Respondent and indicated that the Respondent had responded adequately in the further affidavit.
4. From the material before me, it seems the Respondent asserts that it undergoing tough financial times. However, it is clear that it has been the recipient of assets from the liquidation of Chuka Farmers Co-operative Society (In Liquidation) and further it did not avail the financials to show how much the 599,233 tonnes of coffee produced in 2014 fetched, or how much the 673,954 tonnes of coffee produced in 2015 fetched or what the 423,927 tonnes in 2016, the 256,702 tonnes in 2017 or the 191,383 tonnes brought in during 2018. The figures for 2019 were not even availed. In the premises it would seem there is no merit in the motion by the Respondent which is accordingly dismissed. The Respondent to make payment within the next 2 weeks failing which the Notice to Show cause can be revived.
It is so ordered.
Dated and delivered at Nyeri this 4th day of December 2019.
Nzioki wa Makau
JUDGE