https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1975

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT** **AT NAIROBI** **ELRC CAUSE NO. E350 OF 2020** ***(Before Hon. Lady Justice Hellen Wasilwa, J)*** **FLORENCE KHAMALA OPELE………..………………………CLAIMANT** **VS** **BIOMETRICS TECHNOLOGY LIMITED.....................RESPONDENT** **RULING** 1. The Respondent/ Applicant filed a Notice of Motion application dated 18th December 2025 seeking orders: - 2. *Spent* 3. *Pending the inter partes hearing of this Application, this Honorable Court be pleased to grant a temporary stay of execution of the Judgement and Decree issued on 21st October 2025 and the Warrants of Attachment and Sale issued by Eshikon Auctioneers on 18th December 2025.* 4. *Pending the hearing and final determination of this Application, this Honorable Court be pleased to grant a stay of execution of the Judgement and Decree issued on 21st October 2025 and the Warrants of Attachment and Sale issued by Eshikon Auctioneers on 18th December 2025.* 5. *The Warrants of Attachment and Sale issued on 18th December 2025 be declared irregular, unlawful, null and void and be set aside accordingly.* 6. *This Honorable Court be pleased to declare that the decretal sum herein has been fully settled and that the matter stands fully satisfied.* 7. *The costs of this application be borne by the Claimant/Respondent and their Advocate.* **Respondent/Applicant’s Case** 1. The Applicant avers that this Court entered judgment on 21st October 2025 awarding the Claimant Kshs.500,000 less Kshs.40,000 being the excess amount incurred by the Claimant, leaving a balance of Kshs.460,000. The award was, at all material times, subject to statutory deductions pursuant to Section 49(2) of the Employment Act. 2. The Applicant states that in compliance with the judgment, it remitted Kshs.241,137.65 to the Claimant’s advocates, Apollo Ambutsi & Company Advocates, being the decretal sum after deducting statutory dues amounting to Kshs.160,282.35 and setting off Kshs.58,580.00 arising from the decree issued in ***Milimani MCCC No. E3788 of 2020 - Florence Khamala Opele vs. Saham Assurance Co. Ltd & Another***, in which the Court awarded it costs of Kshs.58,580 against the Claimant. 3. The Applicant asserts that the statutory deductions were lawfully made pursuant to Section 49(2) of the Employment Act which provides that any payments made by an employer under that section are subject to statutory deductions. This was affirmed by the Court in*Wilson Sibiya v Kenya National Examination Council, Cause No. 1659 of 2014*, and *John Kinyanjui Gateru v The Family Bank Ltd, Cause No. 743 of 2013*. 4. It avers that it is the duty of the Employer to deduct the said taxes/statutory deductions and remit the same to the Kenya Revenue Authority. 5. The Applicant states that vide an email dated 7th November 2025, the Claimant demanded payment of Kshs.460,000; which it responded vide an email dated 11th November 2025, requesting the Claimant’s advocates to provide bank account details to facilitate payment of the decretal sum less statutory deductions and also forwarded the decree in MCCC No. E3788 of 2020 informing the Claimant that the decretal costs therein would be set off. However, the Claimant failed to respond or furnish the requested account details. 6. It is the Applicant’s case that despite failing to provide the requisite account details, the Claimant extracted warrants of attachment on 11th December 2025 for Kshs.460,000 without taking into account the statutory deductions, and instructed Eshikhoni Auctioneers who proclaimed the Applicant’s goods on 18th December 2025. 7. The Applicant avers that before the execution, it had requested the Claimant’s bank account details vide an email dated 16th December 2025. 8. Although the Claimant subsequently shared bank details on the same date, the Applicant discovered that the account name supplied was incorrect after its attempt to effect payment was rejected by the bank. It immediately requested the Claimant to provide the correct account name and informed the Claimant’s advocates that: *“We attempted to deposit the Cheque using the payee account details provided, however, the bank rejected it due to incorrect account name. The correct name should be Apollo Ambutsi & Company Advocates, not as previously furnished. Kindly confirm the correct details.”* 9. The Applicant states that the correct account name was only supplied on 18th December 2025, by which time its goods had already been proclaimed. 10. It avers that upon receipt of the correct account details, it promptly paid Kshs.241,137.65 being the decretal amount after applying the statutory deductions and the set-off of Kshs.58,580.00 arising from Milimani MCCC No. E3788 of 2020. 11. The Applicant contends that the delay in settling the decretal amount was occasioned solely by the Claimant’s failure to provide bank account details in good time and the subsequent provision of incorrect account details. 12. It is the Applicant’s case that the Claimant deliberately caused the delay before commencing execution and should not be permitted to benefit from its own fault. 13. The Applicant avers that the warrants of attachment issued on 18th December 2025 are unlawful as the decretal sum had already been settled, subject only to the lawful statutory deductions and the set-off. 14. It was stated that the amount demanded by the Claimant is erroneous for failure to account for statutory deductions and that the auctioneers’ charges, if any, are unlawful and ought to be borne by the Claimant, whose conduct necessitated the execution process. 15. The Applicant further states that this Court has jurisdiction to determine the dispute under Sections 34 and 64 of the Civil Procedure Act, the former requiring all questions relating to the execution, discharge or satisfaction of a decree to be determined by the executing court, while the latter provides for compensation where attachment is levied on insufficient grounds. 16. The Applicant contends that unless the Court grants a stay of execution of the judgment, decree and warrants of attachment, it stands to suffer substantial loss as its property is at risk of being attached and sold in satisfaction of a decree which has already been settled. 17. It therefore asserts that it is in the interests of justice that the application be allowed to prevent a miscarriage of justice and to forestall what it terms as double execution by the Claimant. **Claimant/Respondent’s Case** 1. In opposition to the application, the Respondent filed a replying affidavit dated 9th February 2026. 2. The Respondent’s case is that the Applicant has failed to satisfy the conditions for grant of stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. She states that an applicant seeking stay must demonstrate that substantial loss may result if the orders are not granted, that the application has been made without unreasonable delay and that security has been provided for the due performance of the decree. 3. The Respondent avers that judgment was entered on 21st October 2025 in her favour for Kshs.460,000 together with interest from the date of judgment until payment in full. She asserts that the decretal sum was never subjected to statutory deductions under Section 49(2) of the Employment Act as alleged by the Applicant. 4. The Respondent further states that the decree issued by the Court has neither been varied nor set aside. 5. It is the Respondent’s case that the Applicant is improperly seeking to introduce a lien or set-off against part of the decretal sum by relying on a different matter, namely *Milimani MCCC No. E3788 of 2020 - Florence Opele v Saham Assurance Co. Ltd & Another*. She maintained that if the Applicant wishes to recover the sum of Kshs.58,580 awarded in that suit, it ought to follow the lawful execution procedures available in that separate matter rather than purport to deduct the amount from the present decree. 6. The Respondent avers that the employer-employee relationship between the parties had already terminated and, therefore, the Applicant cannot purport to make statutory deductions from the judgment sum awarded by the Court. 7. She states that although the Court granted the Applicant a stay of execution for 14 days on 21st October 2025, the Applicant failed to settle the decretal amount upon expiry of the stay, thereby necessitating her advocates to demand payment. 8. The Respondent asserts that upon the Applicant requesting bank account details for payment, the same were promptly supplied. She denies the allegation that incorrect or delayed account details were furnished and contends that the allegation is merely a tactic employed by the Applicant to delay settlement of the decretal sum. She maintains that the account details remained consistent and were supplied without delay. 9. The Respondent states that following the Applicant’s failure to satisfy the decree, she lawfully instructed Eshikhoni Auctioneers to proclaim the Applicant’s goods in execution of the decree. 10. It is the Respondent’s case that the judgment and decree were lawfully issued and have not been varied or set aside. Therefore, the Applicant cannot seek to alter the terms of the judgment by introducing issues of statutory deductions and set-off which were neither pleaded nor canvassed before the Court prior to delivery of judgment. 11. The Respondent further asserts that the decretal sum of Kshs.460,000 together with accrued interest and costs amounting to Kshs.17,271 are lawfully due and payable, and that the Applicant is obligated to settle the same in full. She maintains that the warrants of attachment and proclamation issued by Eshikhoni Auctioneers were lawfully issued pursuant to a valid court decree after due process had been followed. 12. The Respondent contends that the Applicant has failed to demonstrate sufficient cause to warrant the grant of stay of execution and has not shown the nature of the substantial loss it stands to suffer that cannot be compensated by an award of damages. 13. It is the Respondent’s case that the application is incurably defective, frivolous, vexatious and an abuse of the court process, having been filed solely to delay execution and deny her the fruits of her judgment. 14. She avers that it is she who stands to suffer prejudice if execution is stayed, that the Applicant has not approached the Court with clean hands and is therefore undeserving of the Court’s equitable discretion. **Respondent/Applicant’s Submissions** 1. The Applicant submitted on four issues: whether statutory deductions were mandatory and were correctly applied; whether the set-off of Kshs. 58,580.00 arising from the decree in Milimani MCCC No. E3788 of 2020 was lawful and proper; whether, following payment of Kshs. 241,137.65, the decree has been fully satisfied; and whether the Warrants of Attachment and Sale dated 18th December 2025 are irregular, unlawful, null and void; and whether the Respondent is entitled to compensation under Section 64 of the Civil Procedure Act. 2. On the first issue, the Applicant submitted that Section 49(2) of the Employment Act is couched in unambiguous and peremptory terms, providing that *"any payments made by the employer under this section shall be subject to statutory deductions."* The Applicant argued that the word "shall" admits of no discretion, and that an award under Section 49 crystallizes not as a sum payable free of deductions but as a gross award from which the employer is obliged to remit statutory deductions before disbursing the net amount. 3. It is the Applicant’s submissions that this obligation survives the termination of the employment relationship since the deduction obligation under the Income Tax Act, the NSSF Act, the SHIF Act, and the Affordable Housing Act follows the payment and not the employment. Reliance was placed on the Court of Appeal decision in [***Directline Assurance Co. Ltd v Jeremiah Wachira Ichaura [2016] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2016/118/eng%402016-11-04), where the Court held: *“ Indeed in Simon Deakin and Gllian S. Morris, Labour Law at page 405, the writers observe that it is the net salary, salary after deduction of income tax, National Insurance contributions to pension schemes or similar benefits, that is used to compute any damages due to any employees. Accordingly, the court erred in not subjecting the award to the mandatory statutory deduction.”* 4. The Applicant submitted that the Claimant's assertion that the terminated employment relationship extinguished the deduction obligation was a fundamental misstatement of the law, the obligation being predicated on the making of a payment and not on subsisting employment, the employer acting as agent of the Revenue Authority for that limited purpose. This position was said to be fortified by [***Ndungu v Safaricom PLC; Martin Mwaniki t/a Anfield Auctioneers (Interested Party) [2025] KEELRC 2234 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2234/eng%402025-07-25), where the Court rejected an identical argument, holding that the absence of an employer-employee relationship at the time of payment could not disentitle the payer from acting as agent for tax purposes. 5. On this basis, the Applicant submitted that it had correctly computed and applied deductions of SHIF Kshs. 13,750, NSSF Kshs. 4,320, P.A.Y.E. Kshs. 134,712.35, and Housing Levy Kshs. 7,500, totalling Kshs. 160,282.35, being standard statutory rates on the gross award, and that it could not be compelled to pay these sums twice. 6. On the second issue, the Applicant submitted that Section 34 of the Civil Procedure Act vests in the executing court a broad and summary jurisdiction to determine all questions touching the execution, discharge, or satisfaction of a decree, without recourse to a separate suit. 7. The Applicant submitted that the sum of Kshs. 58,580 represented costs awarded in its favour against the Claimant in ***Milimani MCCC No. E3788 of 2020, Florence Khamala Opele v. Saham Assurance Co. Ltd & Another***, in which it was the 2nd Defendant, and that the Claimant being the same individual in both matters, these constituted cross-decrees between the same parties which it was entitled in law to set off without instituting fresh proceedings. 8. It was submitted that the Claimant's assertion that there are "lawful set down procedures" it should have followed, fundamentally misapprehended how set-off in execution operates, since Section 34 of the Civil Procedure Act does not require a separate suit and it is precisely the executing court that has jurisdiction over such questions; that the Applicant had put the Claimant on notice of the intended set-off on 11th November 2025; and that her subsequent silence was telling. Reliance was also placed on Order 22 Rule 14(1)(b) of the Civil Procedure Rules, which empowers the court to order satisfaction of a decree by set-off. 9. On the third issue, the Applicant submitted that following the lawful deductions and set-off, the net sum payable was Kshs. 241,137.65, which was deposited into the Claimant's advocates' account, Appollo Ambutsi & Company Advocates at KCB Capital Hill Branch, on 19th December 2025, with the deposit slip placed before the Court. 10. It was submitted that the Claimant's advocate had, by email of 18th December 2025, confirmed that the payment details sent earlier are correct and supplied the account details into which payment was made the following day, such that the fact of payment was undisputed and the only live dispute was the propriety of the deductions, which the Applicant submitted must be resolved in its favour. 11. The Applicant submitted that the decree had been fully and unconditionally satisfied, and that continued prosecution of the Warrants of Attachment against a satisfied decree amounted to an abuse of the process of the Court. 12. On the fourth issue, the Applicant submitted that the Warrants of Attachment and Sale dated 11th December 2025 were extracted in the sum of Kshs. 471,271, arrived at by adding interest of Kshs. 8,821, further costs of Kshs. 950, and court collection of Kshs. 1,500 to the gross decretal sum of Kshs. 460,000, without any allowance for the mandatory deductions of Kshs. 160,282.35 or the lawful set-off of Kshs. 58,580, such that execution was sought for a sum grossly in excess of what was lawfully due. 13. In support thereof, it cited [***Rwito v Kingori & 2 others [2024] KEELC 1250 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1250/eng%402024-03-06)for the holding that where a decree-holder fails to render an accurate account of monies already paid and files an irregular or incomplete form of execution for an unjustified sum, the resulting warrants are illegal, null, and void, the onus lying strictly on the decree-holder to justify the figures in the warrant, failing which the execution cannot be shielded by the doctrine of res judicata. 14. It was submitted that the correct figure was Kshs. 241,137.65, being the net sum after deductions and set-off. The Applicant had been actively seeking account details from the Claimant from 7th November 2025, that she first supplied incorrect details on 16th December 2025, and did not furnish correct details until 18th December 2025, the same day as the proclamation, and that she could not manufacture a default by withholding and misrepresenting her account details and then execute upon a default of her own making. 15. The Applicant characterized the Claimant's conduct in failing to respond to the notice of deductions and set-off, withholding account details, supplying wrong details when compelled, and simultaneously extracting warrants for an inflated figure, as revealing a calculated strategy to frustrate lawful settlement and manufacture a default, from which she ought not to be permitted to benefit. 16. On the final issue, the Applicant submitted that the Applicant was entitled to compensation under Section 64 of the Civil Procedure Act, which empowers the Court to award compensation where attachment has been effected on insufficient grounds, on the basis that the warrants had been extracted on a grossly inflated figure, without factoring the mandatory deductions or the valid set-off, in circumstances where the Applicant had been actively seeking to settle the decree, thereby exposing it to unlawful execution. **Claimant/Respondent’s Submissions** 1. It is the Respondent's submission that five issues fall for determination: whether the Applicant has satisfied the conditions for grant of stay of execution under Order 42 Rule 6 of the Civil Procedure Rules; whether the Applicant should be allowed to introduce new issues outside the judgment; whether the application is a delay tactic; whether the Respondent will suffer prejudice; and the consequential question whether the application ought to be dismissed. 2. On the conditions for stay, it was submitted that Order 42 Rule 6(2) of the Civil Procedure Rules, 2010 provides that no order for stay shall be made unless the court is satisfied that substantial loss may result to the applicant absent the order, that the application has been made without unreasonable delay, and that security for due performance of the decree has been given, these conditions being conjunctive and requiring to be satisfied cumulatively before stay can issue. 3. Reliance was placed on [***Nicholas Stephen Okaka & another v Alfred Waga Wesonga [2022] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/1123/eng%402022-03-29), in which the court cited with approval [***James Wangalwa & Another V Agnes Naliaka Cheseto [2012] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2012/1094/eng%402012-10-24)for the proposition that: *"No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.”* 4. It is the Applicant’s submission that it had failed to demonstrate the substantial loss it stood to suffer absent stay, the decretal sum being purely monetary with no evidence tendered that the Respondent would be incapable of refunding it should the intended appeal succeed, and that mere apprehension of execution, being a lawful process arising from a valid decree, does not amount to substantial loss. 5. On the introduction of new issues, the Applicant submitted that the Applicant improperly sought to raise statutory deductions and set-off after judgment had already been entered, the judgment of 21st October 2025 having awarded the Respondent Kshs. 460,000 together with interest, with the decree neither varied nor set aside, such that the Applicant could not purport to vary its terms through a stay application by canvassing issues never raised at trial. 6. It was further submitted that the alleged set-off arising from Milimani MCCC No. E3788 of 2020 was unrelated to the present proceedings, and that, as deponed by the Respondent, lawful procedures existed for the Applicant to enforce any decree arising from that separate matter without conflating it with the present execution. The Respondent argued that the Applicant's actions amounted to an abuse of the court process intended merely to frustrate her from enjoying the fruits of her lawful judgment. 7. On delay, the Applicant submitted that the Applicant had been granted a 14 day stay of execution on 21st October 2025 but failed to settle the decretal amount upon its lapse, that the Respondent had duly supplied the requisite account details for payment contrary to the Applicant's allegations of delayed or inconsistent details, and that it was only after the Applicant's failure to settle that the Respondent lawfully instructed auctioneers to execute the decree, demonstrating that the application was brought solely to delay execution and deny her the fruits of her judgment. 8. On prejudice, it was submitted that the Respondent, as the successful litigant, is entitled to enjoy the fruits of her judgment without unnecessary obstruction, courts having emphasized that a successful litigant ought not be deprived of the fruits of judgment save for just cause, and that the Applicant had not approached the court with clean hands and had failed to meet the legal threshold for grant of stay. 9. It is the Respondent’s submission that the Applicant had failed to satisfy the mandatory requirements under Order 42 Rule 6 of the Civil Procedure Rules, that the application was an abuse of the court process, and that it ought to be dismissed with costs to the Respondent. 10. I have examined all the averments and submissions of the parties . it is not disputed that the applicant has partly paid the decretal sum and the only problem between the parties is the set off invoked by the applicant and the other levies arising out of the execution. These matters can be resolved by the parties by reconciling the figures. 11. There is need for the ends of justice to be made to stay any further execution pending further directions of this court. Costs in the cause. **Dated, Signed and Delivered virtually at Nairobi this 13th Day of July 2026.** **HELLEN WASILWA** **JUDGE**