[2024] KEELRC 1522 (KLR)

Miseda v Today Online Limited & 2 others; Standard Chartered Bank Limited (Garnishee) (Cause 704 of 2010) [2024] KEELRC 1522 (KLR) (14 June 2024) (Ruling)

Neutral citation: [2024] KEELRC 1522 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 704 of 2010

J Rika, J

June 14, 2024

Between

David Nelson Miseda

Claimant

and

Today Online Limited

1st Respondent

Milton Chomba Njanja

2nd Respondent

Loise Wahu Njanja

3rd Respondent

and

Standard Chartered Bank Limited

Garnishee

Ruling

1. This is an old Claim, as suggested by its registration number in the title above.

2. It was concluded through an award of the Court, dated 20th May 2011. The Claimant was awarded against the 1st Respondent, the total sum of Kshs. 2,085,000, with no order on costs and interest.

3. The amount was to be paid within 45 days of the delivery of the award, but has remained unpaid to-date, 13 years after the award.

4. On 24th May 2012, the Industrial Court, declined an application by the Claimant to attach what he thought was the 1st Respondent’s motor vehicle, finding that, ‘’ there is no evidence to show that the Judgment-Debtor has ceased to exist, and the Claimant/Decree-Holder should intensify search for and identification of the attachable assets and properties of the Judgment- Debtor. ‘’

5. The Claimant has since then, not been able to execute his decree.

6. The 2nd and 3rd Respondents are directors of the 1st Respondent, who were added to the proceedings for purposes of execution.

7. The Respondents are alleged to have placed themselves outside the jurisdiction of the Court, and it is only after the Claimant traced them to Australia, and traced some of their assets in Kenya, that a series of applications have been presented before the Court, 13 years after the dispute was determined.

8. Two applications come up for ruling today. The first is dated 27th June 2023 filed by the Claimant, seeking that order nisi issued on 5th October 2022, is made absolute.

9. The second application is dated 15th August 2023, filed by the Respondents, asking the Court to stay its proceedings, pending hearing and determination of an intended appeal.

10. The Garnishee is only involved in the first application.

11. The Parties filed affidavits, in respect of their positions on both applications. They also rely on submissions, confirmed to have been filed and served, at the last mention before the Court, on 24th November 2023.

The Court Finds: - 12. The Court has no reason to decline the prayer sought by the Claimant, that the garnishee order nisi issued on 15th October 2022, is made absolute.

13. The Respondents have not satisfied the Court that its proceedings, which commenced in the year 2010, and ended in an award made in favour of the Claimant 13 years ago, in 2011, should be stayed pending any intended appeal.

14. The decree has been pending satisfaction for 13 years. The Respondents ceased operations in Kenya, placed themselves outside the jurisdiction of the Court, and have not made any attempt to satisfy the award or appeal against the award for 13 years. They did not respond to the Claim, when it was filed, heard and concluded years back. They flew out to Australia. The Court has no reason to delay partial execution, which garnishee proceedings are intended to achieve.

It Is Ordered: - 15. ....a.The Claimant’s application dated 27th June 2023 is allowed, and order of garnishee nisi, made absolute.b.The Respondents’ application dated 15th August 2023 seeking an order to stay proceedings pending an intended appeal, is declined.c.Costs to the Claimant on both applications.

DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY AT NAIROBI, UNDER PRACTICE DIRECTION 6[2] OF THE ELECTRONIC CASE MANAGEMENT PRACTICE DIRECTIONS, 2020, THIS 14TH DAY OF JUNE 2024. JAMES RIKAJUDGE