[2018] KEELRC 2411 (KLR)
The court found that the Respondent failed to demonstrate sufficient cause to justify payment of the decretal sum by instalments. The proposal to pay Kshs. 100,000 monthly against a debt exceeding Kshs. 26 million was deemed unreasonable and would unduly prolong satisfaction of a debt that had been outstanding for...
Source-derived case information.
- Citation
- [2018] KEELRC 2411 (KLR)
- Parties
- Claimant: Kamlesh V. Rawal; Respondent: Achelis Material Handling Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 593 of 2014
- Procedural Posture
- Employment Cause / Post Judgment Application for Payment by Instalments
- Outcome
- Application dismissed with costs to the Claimant.
- Judges
- J Rika
- Legal Topics
- Decretal Sum Liquidation, Payment by Instalments, Stay of Execution, Judgment Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kamlesh V. Rawal
Claimant
Achelis Material Handling Limited
Respondent
Procedural Posture
Employment Cause / Post Judgment Application for Payment by Instalments
Legal Issues
- 1 Whether the Respondent has shown sufficient cause to warrant payment of the decretal sum by instalments.
- 2 Whether the proposal to pay Kshs. 100,000 monthly against a debt of over Kshs. 26 million is reasonable.
- 3 Whether the Respondent's liquidity issues justify staggered payment of an 8-year old debt.
Ratio Decidendi
The court found that the Respondent failed to demonstrate sufficient cause to justify payment of the decretal sum by instalments. The proposal to pay Kshs. 100,000 monthly against a debt exceeding Kshs. 26 million was deemed unreasonable and would unduly prolong satisfaction of a debt that had been outstanding for eight years. The Respondent's claim of liquidity issues was not substantiated, especially given its significant transactions with County Governments. The Respondent had not made any meaningful proposal to pay even the principal sum upfront, nor had it utilized previous stays of execution to propose staggered payment. The application was therefore rejected as lacking merit.
Court Disposition
Application dismissed with costs to the Claimant.
Orders
- The Respondent's application dated 22nd January 2018 to pay the decretal sum by instalments is rejected.
- The Respondent shall pay the costs of this application to the Claimant.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT
AT MOMBASA
CAUSE NUMBER 593 OF 2014
(Originally Nairobi IC Cause No. 115 of 2010)
BETWEEN
KAMLESH V. RAWAL................................................CLAIMANT
VESRUS
ACHELIS MATERIAL HANDLING LIMITED.....RESPONDENT
Rika J
Court Assistant: Benjamin Kombe
Asige Kiverenge & Anyanzwa Advocates for the Claimant
Wandabwa Advocates for the Respondent
_____________________________
RULING
1. Judgment was delivered on 24th February 2017. The Court ordered the Respondent to pay to the Claimant Kshs. 12,341,079. 90 as commission; interest at 14% per annum on the principal from 12th February 2010; and costs.
2. The Respondent has applied by way of Notice of Motion dated 22nd January 2018, to be granted leave to liquidate the decretal sum in monthly instalments of Kshs. 100,000, or any other sums the Court may deem fit, till full and final payment.
3. The Application is based on Section 3A of the Civil Procedure Act, Order 21 Rule 12, Article 159 of the Constitution of Kenya, and all other enabling provisions of the law. It is supported by the Affidavit of Respondent’s Chairman Gideon Mworia, sworn on 22nd January 2018.
4. Mr. Mworia states it is impossible for the Respondent to raise the decretal sum which stands in excess of Kshs. 26 million; the Respondent is experiencing liquidity issues; the Respondent is facing liquidation crisis as a result of non-payment of debts owed by various County Governments to the Respondent, amounting to Kshs. 474 million; and currently the Respondent is in the process of pursuing these debts.
5. The Deponent also explains that the Respondent has lodged an Appeal against Judgment at the Court of Appeal at Nairobi. He expresses his displeasure against the Trial Court (E&LRC), for declining to grant the Respondent an order for complete stay of execution, pending hearing of the Appeal.
6. The Claimant is opposed to the Application. He filed his Replying Affidavit, sworn on 2nd February 2018. His position is that the Respondent has not shown any sufficient cause, to be allowed to liquidate decretal sum, in instalments. The Affidavit by Mworia confirms the Respondent has the resources to satisfy the decree. The Application is made in bad faith, and is meant to delay, defeat and derail satisfaction of the decree.
7. The Application was heard on 7th February 2018. Parties restated the contents of their Affidavits on record.
The Court Finds:-
8. The Respondent has not shown there is sufficient reason, to stagger payment of the decretal sum.
9. The proposal to pay instalments of Kshs. 100,000, against a total amount of over Kshs. 26 million, is unreasonable and unacceptable.
10. The debt subject matter of the Judgment, arose way back in 2010. The principal sum has been owing to the Employee for 8 years today. An order for staggered liquidation would prolong the Claimant’s wait for payment of a very old debt. As found in the Judgment, the Claimant made persistent demands for payment to the Respondent before filing the Claim. The demands were ignored. The Respondent has not even offered to pay the principal sum at once, before instalments on the balance, comprising interest and costs, could be considered.
11. After Judgment was delivered, the Court granted Respondent stay of execution of 40 days. There was no proposal made to liquidate decretal sum in instalments, during this period of stay.
12. Inexplicably the file went missing, after the Claimant applied for execution in September 2017, and it was not until 24th November 2017, when the Court directed reconstruction of the file, that Parties were able to move the Court.
13. Between February 2017 and January 2018, no proposals were communicated to the Claimant, for staggered payment of the decretal sums.
14. Interim orders of stay of execution have issued in this Court and the Court of Appeal. The Respondent did not utilize the space given through these Orders of stay of execution, to propose payment by way of instalments.
15. Demand letter issued by the Respondent to various County Governments for payment of Kshs. 474 million, issued on 13th June 2017. The Respondent did not disclose if this debt, or any part thereof, has been paid 8 months down the line. The Court agrees with Claimant’s submission, that given the value of transactions involving the Respondent and the various County Governments, it does not seem likely that the Respondent suffers liquidity issues to justify payment of an 8-year old debt, within a period close to 30 years.
16. The Application filed by the Respondent on 22nd January 2018 lacks merit. It is rejected with costs to the Claimant.
Dated and delivered at Mombasa this 15th day of February 2018.
James Rika
Judge