[2023] KEELRC 1628 (KLR)
The court found that the applicant had not demonstrated sufficient cause to warrant the grant of stay of execution or to pay the decretal sum in the manner proposed. The applicant had only paid the initial deposit and failed to provide evidence of further payments or an appeal against the judgment. The court...
Source-derived case information.
- Citation
- [2023] KEELRC 1628 (KLR)
- Parties
- Applicant: Kizito Opiyo Obura; Respondent: Reliance Protection Services Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1440 of 2016
- Procedural Posture
- Employment Cause / Ruling on Application for Liquidation of Decretal Sum by Instalments
- Outcome
- Application partially allowed; applicant to pay balance in three equal monthly instalments and pay auctioneer's expenses and costs.
- Judges
- MN Nduma
- Legal Topics
- Stay of Execution, Liquidation of Debt, Judgment Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kizito Opiyo Obura
Applicant
Reliance Protection Services Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Application for Liquidation of Decretal Sum by Instalments
Legal Issues
- 1 Whether the applicant has demonstrated sufficient cause for the court to allow liquidation of the decretal sum by instalments.
- 2 Whether a stay of execution of the judgment should be granted pending payment of the decretal sum.
- 3 Whether the applicant is entitled to the mode of payment proposed in the application.
Ratio Decidendi
The court found that the applicant had not demonstrated sufficient cause to warrant the grant of stay of execution or to pay the decretal sum in the manner proposed. The applicant had only paid the initial deposit and failed to provide evidence of further payments or an appeal against the judgment. The court exercised its discretion to allow the applicant to pay the balance of the decretal sum in three equal monthly instalments, as proposed by the respondent, rather than the extended instalment plan sought by the applicant. The court also ordered the applicant to pay auctioneer's expenses and costs of the application, emphasizing the need to balance the interests of both parties and...
Court Disposition
Application partially allowed; applicant to pay balance in three equal monthly instalments and pay auctioneer's expenses and costs.
Orders
- The applicant, having paid the initial deposit of Kshs.200,000, shall pay the balance of Kshs.883,765.70 in three equal monthly instalments, the first to be paid immediately upon receipt of this ruling.
- The applicant shall pay expenses incurred by the auctioneers in respect of the admitted attachment and costs of this application.
Full Case Text
Judgment text and source record
32 paragraphs
Obura v Reliance Protection Services Limited (Cause 1440 of 2016) [2023] KEELRC 1628 (KLR) (15 June 2023) (Ruling)
Neutral citation: [2023] KEELRC 1628 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause 1440 of 2016
MN Nduma, J
June 15, 2023
Between
Kizito Opiyo Obura
Claimant
and
Reliance Protection Services Limited
Respondent
Ruling
1. The defendant/Applicant filed Notice of Motion application dated 30th September, 2022 praying for an order in following terms:-1. Spent2. Spent3. Spent4. That the defendant be allowed to liquidate the decretal sum herein by an initial deposit of Kshs200,000/= and thereafter by equal monthly instalments of Kshs.50,000 until payment in full.5. That costs be in the cause.
2. Application is premised on grounds set out on the face of the notice of motion and buttressed in the affidavit of Patrick Kingoro Juma, the Managing Director of the defendant to wit, exparte judgment was entered in favour of the claimant/respondent on 8th August, 2021. Application to set aside the judgment was dismissed with costs.
3. That the claimant has already obtained Warrants of Attachment and Sale and proclaimed the defendant’s property.
4. That the defendant is desirous of liquidating the decretal sum in equal monthly instalments of Kshs.50,000 to be preceded by an initial deposit of Kshs.200,000.
5. That the company is facing harsh financial times and cannot be able to settle the decretal sum once.
6. That unless the Orders sought are granted, then the defendant shall suffer substantial loss since company operations shall be crippled.
7. The parties attempted to settle the matter out of Court and the Court at instance of the applicant ordered that the proposed initial deposit of Kshs.200,000 be paid forthwith. The Court had already granted interim orders staying execution of the decretal sum.
8. It is a fact that the claimants have a judgment in their favour, and are entitled to the fruits of their judgment unless good cause is shown why the decretal sum should not be paid forthwith failing which the Sale of attached goods to proceed. The claimant admitted receipt of the initial deposit of Kshs.200,000.
9. To-date, there is no evidence before Court of any deposit and/or payment of any further instalments by the applicant.
10. The applicant has not filed any appeal against the judgment of the Court having lost the application to set aside the judgment of the Court entered on 8th June, 2021.
11. Since judgment was entered, there has been passage of time of about two (2) years.
12. The applicant must demonstrate, that it has satisfied the requirements for grant of stay of execution of the Orders of the Court in the absence of any agreement and or consent recorded by the parties on the mode of liquidation of the decretal sum.
13. Despite lack of replying affidavit from the claimant/respondent, the Court is not satisfied that good cause has been shown by the applicant for the Court to exercise its discretion for stay of execution of the judgment nor to direct the applicant to pay the decretal sum in the manner proposed by the applicant
14. The claimant vide submissions made by Mr. Mwaure, advocate on 5th December, 2022 informed the Court that they were paid the initial deposit of Kshs.200,000.
15. That the balance of Kshs.883,765 to be paid in three (3) equal instalments.
16. The Court having considered the deposition and submissions by the parties makes the following orders:-(a)The applicant having paid the initial deposit of Kshs.200,000 do pay the balance of Kshs.883,765. 70 in three (3) equal monthly instalments, the first to be paid immediately upon receipt of this judgment.(b)The applicant to pay expenses incurred by the Auctioneers in respect of the admitted attachment and costs of this application.
17. It is so ordered.
DATED AND DELIVERED AT NAIROBI (VIRTUALLY) THIS 15TH DAY OF JUNE, 2023. Mathews N. NdumaJudgeAppearancesM/s Angaya and Company Advocates for the applicantM/s Mwaure & Mwaure Wahiga Advocates for the Claimant/RespondentMr. Ekale – Court Assistant