[2015] KEELRC 1429 (KLR)
The court held that the Respondent's attempt to introduce new claims regarding deductions, specifically a loan allegedly owed by the Claimant to Citibank, was improper as these claims were neither pleaded nor supported by evidence during the main proceedings. The court emphasized that all claims and counterclaims...
Source-derived case information.
- Citation
- [2015] KEELRC 1429 (KLR)
- Parties
- Claimant: Thomas Sila Nzivo; Respondent: Bamburi Cement Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 117 of 2013
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Post Award
- Outcome
- Application for stay of execution rejected; costs awarded to Claimant.
- Legal Topics
- Stay of Execution, Statutory Deductions, Counterclaims, Execution of Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Sila Nzivo
Claimant
Bamburi Cement Limited
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Post Award
Legal Issues
- 1 Whether the Respondent can introduce new claims regarding deductions after the award has been delivered.
- 2 Whether deductions not pleaded or evidenced in the main proceedings can be considered at the execution stage.
- 3 Whether only statutory deductions are permissible outside the pleadings and evidence.
Ratio Decidendi
The court held that the Respondent's attempt to introduce new claims regarding deductions, specifically a loan allegedly owed by the Claimant to Citibank, was improper as these claims were neither pleaded nor supported by evidence during the main proceedings. The court emphasized that all claims and counterclaims should be raised and determined within the substantive hearing, and not at the execution stage. The only permissible deductions from the award, outside the pleadings and evidence, are statutory deductions as required by law. Consequently, the Respondent's application for stay of execution was rejected, and costs were awarded to the Claimant.
Court Disposition
Application for stay of execution rejected; costs awarded to Claimant.
Orders
- The application dated 9th January 2015 filed by the Respondent is rejected.
- Costs of the application to the Claimant.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT AT MOMBASA
CAUSE NO. 117 OF 2013
BETWEEN
THOMAS SILA NZIVO …..................................................... CLAIMANT
VERSUS
BAMBURI CEMENT LIMITED ......................................... RESPONDENT
Rika J
Court Assistant – Benjamin Kombe
Mr. Oddiaga advocate instructed by Stephen Oddiaga & Company Advocates for the Claimant
Mr. Njeru advocate instructed by Njeru & Company Advocates for the Respondent
RULING
The Court delivered an Award dated 28th November 2014. The Respondent was ordered to pay to the Claimant the sum of Kshs.354,923.
The Claimant sought to execute the decree. On 9th January 2015, the Respondent filed an application for stay of execution, arguing that if all the deductions are factored in, the sum awarded would be in the negative.
The application is supported by the affidavit of Betty Kanyagia, General Counsel of the Respondent, sworn on 9th January 2015.
The Claimant opposes the application through his affidavit sworn on 19th January 2015.
Upon hearing the submissions made by Mr. Njeru for the Respondent, and Mr. Oddiaga for the Claimant, the Court finds:-
The loan amount claimed to be owed to Citibank by the Claimant, was not part of the pleading and evidence of the Respondent.
It was not counterclaimed.
All respective claims should have been channelled through the Court proceedings.
The application by the Respondent seeks to introduce new claims, without giving the Claimant the benefit of challenging claims in a proper Court hearing.
The only deductions that can be made, outside the Parties' pleadings and evidence, are statutory deductions.
In view of this, the Court orders:-
(a) The application dated 9th January 2015, filed by the Respondent is rejected.
(b) Costs of the application to the Claimant.
Dated and delivered at Mombasa this 13th day of February 2015.
James Rika
Judge