[2019] KEELRC 2077 (KLR)
The court found that while the applicant has a right to seek payment by instalments, it failed to demonstrate sufficient cause as required by Order 22 Rule 12(2). The applicant did not offer to pay a fair proportion of the debt upfront and, despite claiming financial hardship, had shown high turnover in previous...
Source-derived case information.
- Citation
- [2019] KEELRC 2077 (KLR)
- Parties
- Respondent: Japhet Bundi; Applicant: Meru Multi-Purpose Co-op Society Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Cause 6 of 2017
- Procedural Posture
- Notice of Motion Application / Ruling on Application for Payment of Decretal Sum by Instalments
- Outcome
- application dismissed with costs to the claimant/respondent
- Judges
- AN Makau
- Legal Topics
- Payment by Instalments, Judgment Debtor Applications, Terminal Benefits, Decretal Sum Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Japhet Bundi
Respondent
Meru Multi-Purpose Co-op Society Limited
Applicant
Procedural Posture
Notice of Motion Application / Ruling on Application for Payment of Decretal Sum by Instalments
Legal Issues
- 1 Whether the applicant has demonstrated sufficient cause to warrant payment of the decretal sum by instalments.
- 2 Whether the application to pay by instalments meets the legal test under Order 22 Rule 12(2).
Ratio Decidendi
The court found that while the applicant has a right to seek payment by instalments, it failed to demonstrate sufficient cause as required by Order 22 Rule 12(2). The applicant did not offer to pay a fair proportion of the debt upfront and, despite claiming financial hardship, had shown high turnover in previous years. The court concluded that the application did not meet the legal threshold for granting payment by instalments and dismissed the application with costs to the respondent.
Court Disposition
application dismissed with costs to the claimant/respondent
Orders
- The application to pay the decretal sum by instalments is dismissed.
- Costs awarded to the claimant/respondent.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT OF KENYA AT MERU
CASE NO. 6 OF 2017
(Formerly Nyeri ELRC No. 267 of 2017)
JAPHET BUNDI....................................CLAIMANT/RESPONDENT
VERSUS
MERU MULTI-PURPOSE CO-OP
SOCIETY LIMITED...........................RESPONDENT/APPLICANT
RULING
1. The Respondent/Applicant seeks through the notice of motion application dated 7th February 2019 and filed on 8th February 2019 for orders to pay the decretal sum by instalment. In the motion, the Applicant asserts that there is an intent to liquidate the decretal sum in instalments as the Applicant is not financially capable of paying the full decretal sum plus costs and interest in lump sum. The Applicant asserts it is paying very huge loans and thus has been incurring massive losses. The Applicant argues as it is paying terminal benefits to 7 other former employees, it would be just for the court to grant the prayer to pay by instalment.
2. The Claimant/Respondent urges the court to disallow the motion as in the motion the Applicant had shown there were profits of between 3. 4 million and 7. 7million in 2015-2017. The Respondent argues that the application was made late and the proposal laughable as the payments will take 9 years to effect. He thus urges the court to dismiss the motion.
3. In an application seeking to have payments effected by instalment, the law provides as follows under Rule 12(2) of Order 22:-
12. (2) After passing of any such decree, the court may on the application of the judgment-debtor and with the consent of the decree holder or without the consent of the decree-holder for sufficient cause shown, order that the payment of the amount decreed be postponed or be made by installments on such terms as to the payment of interest, the attachment of the property of the judgment-debtor or the taking of security from him, or otherwise, as it thinks fit. (underline mine)
The Applicant has a right to seek the remedy it now seeks in the motion. The court must however have consideration as to sufficiency of the entreaty sought. What constitutes “sufficient cause” in the context of rule 12 above are:-
(a) the circumstances under which the debt was contracted
(b) the conduct of the debtor
(c) his financial position
(d) his bona fides in offering to pay a fair proportion of the debt at once
There is no dispute that the debt was incurred as wages due to the Respondent for services he rendered to the Applicant. The Applicant has shown that it has massive debt but nevertheless has a high turnover. The Applicant has also curiously not offered a payment of a fair proportion of the debt at once. In my view, the prayer to pay by instalments fails to meet the test laid out in the case of M A Bayusuf & Sons Limited v Express Kenya Limited & Another [2017] eKLR. The application is devoid of merit and is dismissed with costs to the Claimant/Respondent.
It is so ordered.
Dated and delivered at Nyeri this 13th day of March 2019
Nzioki wa Makau
JUDGE
I certify that this is a true copy of the Original
Deputy Registrar