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ELRCOtherNot stated in the extract· [2013] KEELRC 962 (KLR)

David Kimani And 9 Others v Geothermal Development Company Limited [2013] KEELRC 962 (KLR)

Industrial Court of Kenya
20 December 2013
407 words in judgment
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The bottom line

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What this practically means

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Executive summary

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Geothermal Development Company Limited, the applicant, moved the Industrial Court at Nakuru by notice of motion dated 2.12.2013 under Rules 16(1)(3)(4), 31(2) and 36 of the Industrial Court (Procedure) Rules 2010, Order 22 Rule 22 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act, seeking permanent orders barring the respondents, their servants or agents from attaching its property. The application was supported by the affidavit of Thomas Mburu. The applicant asserted that it had paid all outstanding claimants' dues as ordered in the judgment, less tax (Kshs.681,836.58 being income tax and VAT) which had been remitted to the Kenya Revenue Authority, and that the claimants had appointed Tango Auctioneers and General Merchants to execute for the deducted sum. The court found undisputed that the claimants had been paid in satisfaction of the judgment but without explanation of the deductions. The claimants submitted that only claimants Nos. 1, 2, 5 and 6, earning Kshs.720 per day (Kshs.20,160 per month), were liable to income tax under section 49(2) of the Employment Act, 2007, and the respondent conceded. The court held the claimants entitled to Kshs.681,836.58 less income tax due from claimants Nos. 1, 2, 5 and 6, ordered payment by 15.1.2014 failing which execution would continue, granted a stay of execution until 15.1.2014, and fixed costs of the application at Kshs.5,000 payable by the respondent.

Key legal issues

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01

Whether income tax deductions from judgment dues were justified

Holding

Only claimants Nos. 1, 2, 5 and 6, earning Kshs.20,160.00 per month, were liable to income tax; the applicant had paid the decretal sum less such tax, and the claimants were entitled to the balance of Kshs.681,836.58 less income tax due from those claimants

Reasoning

The court found it undisputed that the claimants had been paid in satisfaction of the judgment but without explanation of the deductions. The claimants submitted that only those earning above the threshold were taxable under section 49(2) of the Employment Act; the respondent conceded. The court accepted that position and ordered payment of the deducted amount within a fixed period, failing which execution would continue.

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Legal principles established

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  • Awards under section 49(2) of the Employment Act, 2007 to claimants earning Kshs.720.00 per day (Kshs.20,160.00 per month) attract income tax; deductions as tax from judgment dues must be explained to the court

Court orders

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  1. 1.The respondent to pay the claimants Kshs.681,836.58 less income tax due from claimants Nos. 1, 2, 5, and 6 by 15.1.2014 failing which execution for the due pay to continue
  2. 2.Stay of execution until 15.1.2014
  3. 3.The respondent to pay costs of the application fixed at Kshs.5,000.00

Authorities

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Legislation

  • Industrial Court (Procedure) Rules 2010Rules 16(1)(3)(4), 31(2), 36
  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure ActSections 1A, 1B, 3A
  • Employment Act, 2007Section 49(2)
Jurisdiction invoked
Rules 16(1)(3)(4), 31(2) and 36 of the Industrial Court (Procedure) Rules 2010; Order 22 Rule 22 of the Civil Procedure Rules; sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "David Kimani And 9 Others v Geothermal Development Company Limited [2013] KEELRC 962 (KLR)", Case Analysis (2013). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/962/eng@2013-12-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.