https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2132

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MACHAKOS ELRC APPEAL NO. E009 OF 2024 TAMU MILLERS LIMITED--------------------------------------------------------------APPELLANT -VERSUS- FARIS MUNIANGI BARASA---------------------------------------------------------RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno RULING 1. The ruling is on 2 applications, of 8th May 2025 by the respondent and 22nd May 2025 by the appellant, respectively. 2. The application by way of Notice of Motion dated 8th May 2025 by the Respondent sought the following orders: 3. This Honourable Court be pleased to set aside the ex-parte orders of the Hon. Justice Byram Ongaya issued on 28th February, 2025. 4. The Decretal sum of Kshs. 1,463,447/= deposited in Court be released to the Applicant. 5. A further application by way of Notice of Motion dated 22nd May 2025 by the appellant sought the following orders- 6. THAT this Honourable Court be pleased to grant an Order for RELEASE of the Decretal sum of Kshs. 1,463,447/= deposited in court to the Applicants' Advocate's bank for onward transmission to the Applicants; to wit: Account Name: Ahmed Maash & Company Advocates Account Number: 1520040101 Bank: Gulf African Bank Branch. Kenyatta. 7. THAT the Honourable be Pleased to make any such further orders and directions that it may deem fit and just in the circumstances of this case. 8. Both parties seek the release of the decretal sum deposited in court to themselves. The court heard the case orally. The respondent further filed submissions dated 24th June 2026 in summary of their case. 9. The appellant grounded their application on having entered into an agreement with the respondent to compromise the intended appeal by payment of Kshs. 100,000. The judgment sum was Kshs. 1,463,447. The alleged agreement was annexed as AMA-2 in the affidavit in support of the application dated 22nd May by Affey Mohamed Abdi. 10. The respondent denied having signed the agreement dated 2nd May 2025 (AMA-2 by appellant). In view of the different positions taken by the parties, the court ordered hearing interpartes to establish the truth. The court, having heard the evidence of the parties, established that indeed Abdi approached the respondent in the absence of his advocate and tried to get him to sign the agreement. On the face of the agreement the court believed that the agreement was obtained by coercion. When a party is represented in court by an advocate, it is bad practice to approach the client to settle the dispute out of court without informing the advocate on record. The court further impeached the agreement on the basis that it was onerous. The respondent filed a claim of unfair termination and was awarded in default judgment the sum of Kshs. 1,463,447 by Hon B. Cheloti (SRM) in CM Kajiado ELRC case No. E005 of 2022 between the parties. How can then the appeal be compromised by payment of a measly sum of Kshs. 100,000 compared to the decretal sum? The term onerous is defined under the Black Law Dictionary (Garner, 10th Ed) as follows- ‘’excessively burdensome or troublesome, causing hardship, having or involving obligations that outweigh the advantages,’’ The purported agreement fits with the definition and is held as onerous, and also vitiated by coercion. The appellant applied for setting aside of the Judgment and the application was dismissed by Hon. Kagoni (PM) vide decision dated 5th March 2024. The appellant then moved the court to challenge the ruling of Hon. Kagoni, which appeal was dismissed by Justice Byram Ongaya (as he then was) on the 19th December 2024. 11. The appellant was not satisfied with appeal decision and filed Notice of Appeal dated 20th December 2024. vide application dated 20th December 2024, the appellant sought the security deposited in court to abide by the 2nd appeal to the Court of Appeal. Justice Byram Ongaya vide Order dated 28th February 2025 allowed the application and granted an Order of stay of execution of the Decree and held the decretal sum deposited in court of Kshs. 1,463,447 to continue being so deposited in court pending the hearing and determination of the intended appeal in the Court of the Appeal. It is this later Order the respondent sought to discharge in the application dated 8th May 2025. 12. The court having held the agreement purporting to compromise the appeal was onerous and vitiated by coercion thus a nullity, I find the next issue to determine to be whether the respondent was paid the total sum of Kshs. 100,000 by way of 2 instalments as asserted by the appellant. Vide further affidavit, Abdi, told the court he paid the respondent on 24th May 2025 sum of Kshs. 50,000 and a further equal sum on the 26th May 2025. He produced MPESA statements following the court's leave. He asserted that he sent the money to the number given by the respondent. The respondent denied receipt of the money. The M-Pesa statement confirmed that the mobile number in which the money was deposited belongs to John Mwanzi Karori. At the first hearing, the respondent did not have his ID card. On 5th June 2026, Abdi produced the M-Pesa system, which accurately reflected the payments as stated. The recipient was not the respondent. Abdi told the court that he sent the cash to the number the respondent had given him, as he had lost his ID and was using the number 0115304455. 13. During cross-examination by counsel for the Respondent, Abdi told the court he sent the money in the presence of the respondent. He stated that he had met the respondent earlier on 2nd May 2025 when they signed the impugned agreement, and they had met at his residence in Isinya town. On re-examination, Abdi informed the court that even before engaging with the respondent regarding the case, he would pay him a sum of money for the respondent to withdraw. 14. The respondent on the same date of 5th July 2026 was cross-examined by Counsel for the appellant. The court finds that due to the high contest on the issue, reproduction of the cross-examination of the respondent may be necessary. Q By counsel for the appellant - Last time you told the court you left ID at home ? Ans Yes Q What happened to that ID? Ans It got lost. My wife left with my things. Q. When did you get the instant ID? Ans 25th November 2025. The respondent denied not having having ID as at last court session of 7th July 2025. He told the court it took him 21 days to get a new ID. The respondent denied acquaintance with John Karoli, the name in the MPESA statement. He denied knowledge of advocate Carolyne Kamende. He denied the affidavit under application dated 8th May 2025 being his. He told the court that was his application. 1. The respondent admitted having owned numbers 0118533758, 094051470 and 0794051430. He told the court that while working the pay was sent to an agent in a shop and he withdrew. The respondent told the court he used to be paid through other persons' numbers or shops. 2. The court finds that the evidence of the respondent to the effect that the respondent was paid via other people's phone numbers or shops supported the testimony of Abdi that the respondent gave him a number to pay the total sum of Kshs. 100,000. The court found that the respondent was evasive on his relationship with Abdi. Of course, Abdi was intent on tricking the respondent out of his well-earned judgment by paying a measly Kshs. 100,000 out of the Judgment sum of Kshs. 1,463,447. The court holds that the Appellant proved on balance of probabilities that he paid Kshs. 100,000 through the number of John Kalori for benefit of the respondent towards settlement of the judgment. The court finds that even if the respondent had signed the agreement, the same was onerous and tainted with coercion and thus vitiated. 3. The court then considers whether to release the decretal sum, less Kshs. 100,000, to the respondent. The appellant argued that since the agreement had been aborted, the deposit should remain as security for the intended appeal. Conversely, the respondent maintained that there was no evidence of the appeal having been lodged, as no case number had been provided. The court is aware of the order by Justice Byram Ongaya that the deposit be held by the court pending the hearing and determination of the intended appeal. The agreement was intended to settle the appeal. The court has found the agreement invalid, and therefore a nullity. 4. The appeal was to the Court of Appeal. There is a notice of appeal on record. That is all that is required for the stay to be sustained. I find that it would be unprocedural for me to allow the application dated 8th May 2025 without ascertaining the status of the appeal at the Court of Appeal. In order to meet ends of Justice and to avoid unjustified delay of the respondent enjoying fruits of his judgment, taking into account the deposit is held to prevent the appeal being rendered nugatory, the court orders that the appellant avails the respondent with the Court of Appeal case number and citation within 30 days from today failing which the respondent will be at liberty to apply for the release of the decretal sum to himself less the Kshs100,000 as held. CONCLUSION 1. The 2 applications are determined by the Court as follows- 2. The agreement dated 2nd May 2025 is held as being onerous and vitiated by coercion, thus null and void. 3. The court held that the appellant proved on a balance of probabilities, to have paid the respondent Kshs. 100,000/=. 4. The court declares the deposit in court is held as security for the intended appeal. The appellant is ordered to serve the respondent with the Court of Appeal case Number and citation within 30 days of this order, failing which the order of Justice Ongaya of 28th February 2025 shall stand vacated and the money be released to the parties as follows- Kshs. 1,363,447/= to the respondent and Kshs. 100,000 to the Appellant. 5. Each party to bear on costs in the applications. 6. Right of appeal. 7. It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 17TH DAY OF JULY, 2026. JEMIMAH KELI, JUDGE IN THE PRESENCE OF: Court Assistant: Otieno Appellant -Dayib Respondent - Nekesa h/b Ngigi