[2022] KEELRC 183 (KLR)
The court found that the applicant had not demonstrated any genuine inability to pay the decretal sum, nor provided evidence that the attached goods were exempt from attachment by law. The applicant's conduct, including prolonged non-payment and lack of evidence of financial incapacity, indicated a lack of bona...
Source-derived case information.
- Citation
- [2022] KEELRC 183 (KLR)
- Parties
- Applicant: Kamuga/Gaichanjiru FCS Limited; Respondent: Kenya Union of Commercial, Food and Allied Workers
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 251 of 2018
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution and Extension of Time to Pay Decretal Sum
- Outcome
- application dismissed
- Judges
- DKN Marete
- Legal Topics
- Stay of Execution, Payment of Decretal Sum, Attachment of Property, Instalment Payments, Terminal Dues
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kamuga/Gaichanjiru FCS Limited
Applicant
Kenya Union of Commercial, Food and Allied Workers
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution and Extension of Time to Pay Decretal Sum
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the decree.
- 2 Whether the applicant should be granted a five-year grace period to satisfy the decree by instalments.
- 3 Whether the claimant should be restrained from attaching the respondent's goods of trade.
Ratio Decidendi
The court found that the applicant had not demonstrated any genuine inability to pay the decretal sum, nor provided evidence that the attached goods were exempt from attachment by law. The applicant's conduct, including prolonged non-payment and lack of evidence of financial incapacity, indicated a lack of bona fides and suggested the application was a delaying tactic. The court held that the interests of justice required the claimant to enjoy the fruits of judgment without further delay. Consequently, the application for stay of execution and for a five-year grace period to pay by instalments was dismissed. The court ordered the decretal sum to be paid within 60 days and directed each...
Court Disposition
application dismissed
Orders
- The decretal amount of Kshs.5,442,449.85 shall be paid within a period of 60 days.
- Each party shall bear their own costs of this application.
Full Case Text
Judgment text and source record
47 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA
AT NYERI
CAUSE NO.251 OF 2018
(Before D.K.N.Marete)
KAMUGA/GAICHANJIRU FCS LIMITED........................................................CLAIMANT
VERSUS
KENYA UNION OF COMMERCIAL, FOOD
AND ALLIED WORKERS...............................................................................RESPONDENT
R U L I N G
This is an application by way of Notice of Motion dated 25th May, 2021 and comes out as follows;
a)Service of this application be dispensed with at the hearing of the first instance and this application be certified as urgent.
b)There be a stay of execution till this application is heard and determined.
c)The judgment creditor be allowed a grace period of five years to satisfy the decree.
d)The claimant be permanently restrained from attaching the respondent goods of trade.
e)Any other orders this honourable court may deem fit to grant.
It is based on the following grounds;
1. The claimant has attached the respondent’s goods of trade which exempted by the law from attachment.
2. That if execution proceeds the respondent operations shall be totally incapacitated.
3. That the respondent cannot satisfy the amount claimed in lump sum and is seeking a time frame of at least five years to settle.
4. The respondent shall suffer irreparable loss if application is not granted and attached goods serve a large community.
The Respondent tabulates his case as follows;
· That the judgment the subject matter of this application was delivered on 25th November, 2019.
· That upon receipt of judgment she sought a meeting with the claimant to discuss mode of payment.
· That this was agreed to be paid in three instalments with effect from 30th November, 2021.
· That on agreement, the Applicants counsel refused to sign the consent.
· That the applicant went ahead to apply for a decree whereupon the Respondent/claimant realised that it was erroneously added.
· That the Respondent/Claimant successfully filed an application for review.
· That 6 years down the line, nothing has been paid.
· There is no indication of willingness to meet the decretal sum.
· That this is dishonesty and a delaying tactic.
· There is no evidence of inability to pay, or at all.
· That this application is misplaced, bad in law and calls for dismissal.
They pray that this payment be spread over a period of five years.
The Respondent in her written submission dated 9th July, 2021 reiterate their case against the application.
I find the application in favour of the Claimant/Respondent. This is supported by the Applicant’s conduct in the matter which speaks volumes of her reluctance to walk straight through this transaction.
It is the Claimant/Respondents submission that the Respondent/Applicant is being dishonest and this application is a delay tactic intended to buy time to the detriment of the grievant. She has not in any event tendered any evidence of disability to pay so as to warrant a spread of the payment of the decretal sums.
The application tilts in favour of the Claimant/Respondent. The judgment of this court was made three (3) years down the line. The grievant continues to suffer the indignity and injustice of not having been paid their terminal dues. Their fruits of judgement hang in the air for no good reason.
I am therefore inclined to dismiss the application and order relief as hereunder;
i) That the decretal amount of Kshs.5,442,449. 85 be paid within a period of 60 days.
ii) That each party shall bear their costs of this application.
DATED AND DELIVERED AT NYERI THIS 23RD DAY OF MARCH, 2022.
D.K.NJAGI MARETE
JUDGE
APPEARANCES
1. MISS MACHARIA FOR THE CLAIMANT UNION/RESPONDENT.
2. MR.KIMWERE INSTRUCTED BY KIMWERE JOSPHAT & COMPANY ADVOCATES FOR THE RESPONDENT/APPLICANT