https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1704

Waweru v Presbyterian University of East Africa (Employment and Labour Relations Cause E962 of 2023) [2026] KEELRC 1704 (KLR) (22 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1704 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Cause E962 of 2023 HS Wasilwa, J June 22, 2026 Between Peter Kimita Waweru Claimant and Presbyterian University of East Africa Respondent Ruling 1.The respondent/applicant filed a notice of motion application dated 10th December 2025, seeking orders:1.Spent2.That this honourable court be pleased to grant leave to the firm of JK Mungania & Company Advocates to come on record on behalf of the respondent, pending the hearing and determination of this application;3.That there be a temporary stay of execution/warrants issued on the 5th of December 2025 pending and determination of this application inter parties.4.That this honourable court be pleased to restrain the claimant from attaching the respondent’s properties pending the tabulation of the accounts and correction of error that intends to claim decretal sum already settled.5.That the costs of this application be provided for. Respondent/Applicant’s Case 2.It is the applicant's case that the parties entered into a consent dated 10th June 2025 which was adopted as a judgment of the court, and the file was closed on 23rd September 2025. 3.The applicant avers that the respondent paid the full decretal amount of Kshs. 502,622.04 and has attached a tabulated amount, proposed payment plan, and excerpts of bank statements in support thereof. 4.It is the applicant's case that despite the respondent having settled the full amount, the claimant proceeded to execute an amount of Kshs. 167,540, attaching warrants of attachment and proclamation in support. 5.The applicant contends that the execution of the court's decree will occasion irreparable harm to the respondent, as the proclaimed items constitute its tools of trade and their attachment will cripple its operations, resulting in loss that cannot be compensated by way of damages. 6.It is further the applicant's case that the orders sought will not occasion any prejudice to the claimant, as the Respondent is ready and willing to settle any amount once the correct figures are ascertained. 7.The applicant asserts that unless the application is heard urgently and the orders granted as prayed, the claimant will proceed with the impugned execution, thereby prejudicing it. The applicant states that it is willing to abide by any terms and conditions the court may impose in granting the orders sought. Claimant/Respondent’s Case 8.In opposition to the application, the claimant/respondent filed a replying affidavit dated 13th March 2026. 9.The claimant/respondent avers that the application is an abuse of the court process as the applicant is guilty of non-disclosure of material facts. 10.He avers that this matter is part of a series of seven similar matters involving different employees of the same judgment debtor/applicant, all of which were settled on the basis that the Applicant would pay each claimant an equivalent of four months' salary, less statutory deductions, as compensation for unfair termination. 11.The claimant/respondent avers that he personally entered into a consent dated 3rd July 2024 whereby the applicant agreed to pay her four months' salary in settlement of the suit, but the applicant reneged on the said consent and paid only one month's salary and failed/neglected to pay the outstanding balance of three months' salary. 12.He further avers that his advocate thereafter negotiated with the judgment debtor/applicant, resulting in a consent dated 10th June 2025, which was adopted as an order of court on 11th June 2025, wherein the applicant agreed to pay the outstanding three months' salary in two equal instalments. 13.It is the claimant/respondent's case that his monthly salary was Kshs. 228,000, which after statutory deductions amounted to Kshs. 167,540.95, making his three months' net salary Kshs. 502,622.85 as per the court order. He contends that the applicant proceeded to pay only Kshs. 335,082.85, representing two months' salary, leaving an outstanding balance of Kshs. 167,540.95. He further avers that the applicant paid his advocate's firm Kshs. 335,081.09 vide cheque number 006449, and that no further payment has since been received. 14.The claimant/respondent contends that the applicant has not come to court with clean hands and that the application lacks merit, being intended only to unreasonably and inordinately deny her her dues. He urged the court to dismiss the application with costs and order the applicant to pay the outstanding balance of Kshs. 167,540.95 immediately. Respondent/Applicant’s Submissions 15.On whether the respondent fully settled the amount in the consent, the applicant submitted that execution was contingent upon the respondent's failure to settle the decretal amount, and that at paragraph 3 of its affidavit, the respondent asserts full settlement. 16.It was submitted that the burden of proving full payment lies on the respondent by virtue of section 107(1) of the Evidence Act, Cap 80, which provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist, and section 109 of the same Act, which provides that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. 17.The applicant further relied on Maria Ciabaitaru M'mairanyi & Others v Blue Shield Insurance Company Limited* Civil Appeal No. 101 of 2000 [2005] 1 EA 280, as quoted with approval in Mumbi M'Nabea v David M.Wachira [2016] eKLR, where the principle was stated thus:“Whereas under section 107 of the Evidence Act, the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue, section 109 of the same Act recognises that the burden of proof as to any particular fact may be cast on the person who wishes the Court to believe in its existence." 18.On the standard of proof, the applicant relied on Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] KECA 616 (KLR), quoting Denning J in Miller –vs- Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say:-“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” 19.It is the applicant's submission that the amounts were paid via cheque numbers 104626 and 0066449 on 1st October 2025 and 9th December 2025 respectively, and that the claimant admitted in his replying affidavit to have received the amount disbursed on 9th December 2025. The applicant thus argued that both amounts were paid and that the claimant's deliberate blindness to the first amount is calculated to punish the respondent for late payment. 20.It was further submitted that no explanation has been proffered as to why the second cheque would go through while the first would bounce, and that there is no evidence in the form of the advocate's bank account statements to show that the first amount did not reflect in his account for the month of October 2025. 21.The applicant argued that the claimant relies on broad proclamations unsupported by evidence, while the respondent has produced credible documentary evidence that supersedes the claimant's own. It was submitted that the respondent has proven its burden of proof to the required standard and invited the court to answer the first issue in the affirmative. 22.On whether the respondent has settled its financial obligations to the claimant, it was submitted that the Respondent's obligations have been fully settled, the consent perfected, and all claims extinguished. It cited Stephen Mukiri Ndegwa & another v Kenya Commercial Bank Limited [2021] KEHC 8537 (KLR), where the court considered the perfection of a consent, despite procedural mishaps underlying the same, as having extinguished the Defendant's obligations towards the plaintiff. 23.It was submitted that lateness, being a simple procedural mishap in satisfying the consent, is not sufficient to punish the respondent and vest an unjust enrichment upon the claimant. The applicant urged the court to answer the second issue in the affirmative. Claimant/Respondent’s Submissions 24.The claimant/respondent's submitted that it is trite law that parties are bound by the terms of their consent, which has the force and effect of a binding contract once adopted by the court. 25.He submitted that the respondent was expressly obligated to remit the entire settlement sum through the claimant's Advocates but failed to comply with this clear and unambiguous term, having made only partial payment and leaving an outstanding balance unpaid. 26.It was further submitted that the respondent's supporting affidavit contains a tabulated payment schedule and proposed payment plan which alleges that the claimant was paid Kshs. 167,540 on 1st October 2025 and Kshs. 335,081 on 9th December 2025. The claimant/respondent contended that this position is factually incorrect, as the record clearly shows that the first instalment of Kshs. 335,081 was paid vide cheque dated 5th September 2025 and banked on 15th September 2025 by the claimant's Advocates. 27.She further argued that the alleged payment plan in LW-2 indicating that the sum of Kshs. 167,540 was part of a payment made in December 2024 is equally incorrect, unsupported, and inconsistent with the consent terms or any bank documentation. 28.It was submitted that no credible evidence has been placed before the court to demonstrate that the outstanding balance of Kshs. 167,540 has ever been paid or settled in any form, therefore, the respondent has only partially complied with the consent judgment and remains in breach to that extent. 29.It is the claimant/respondent’s submission that the alleged payment records relied upon by the respondent are inconsistent, unsupported by primary banking documents, and do not displace the admitted outstanding balance. He urged the court to find that the respondent has not fully satisfied the terms of the consent judgment adopted on 11th June 2025. 30.I have examined all the evidence and submissions of the parties. The applicant seek stay on the ground that they have paid the entire decretal sum. Their contention is that there is need to be proper tabulation of the amounts payable and they are willing to pay any amounts owed. I note that the respondent applicant have paid the bulk of the decretal amount and what remains can be settled. The request to have reconciliation done is a prayer that would aid this court fully determine this matter. 31.I would therefore allow a temporary stay of execution pending conciliation of the amount payable which will be done under this court’s supervision. Costs in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 22ND DAY OF JUNE, 2026.HELLEN WASILWAJUDGE