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ELRCPartially AllowedNot stated in the judgment excerpt· [2015] KEELRC 809 (KLR)

Bernard Kuria Mwangi & 2 others v Kasturi Limited [2015] KEELRC 809 (KLR)

Employment and Labour Relations Court
26 June 2015
1,043 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court allowed a judgment debtor to pay an award in instalments, but only after a substantial up-front payment.

What this practically means

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Executive summary

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The applicant, a judgment debtor in an employment cause in which the claimants were awarded sums for unfair termination, sought a stay of execution of the decree, leave to liquidate the decretal sum in monthly instalments of Kshs.50,000/=, and waiver of interest on the judgment sum. The application was supported by the affidavit of Biprichandra P. Shah, citing the applicant's eviction from its business premises and loan repayments to Family Bank as constraining its cash flow. The claimants opposed, arguing the Court had become functus officio, that the proposed instalments were inordinately low, and that the Court lacked power to waive interest and costs. The Court held that applications to settle decretal sums by instalments are discretionary and must balance the decree holder's right to enjoy the fruits of judgment against the judgment debtor's financial circumstances. Applying the principles in Jabali Alidina v. Lentura Alidina, and echoing Rosengrens Ltd v. Safe Deposit Centre, the Court considered the ex parte nature of the judgment, the claimants' low earnings, and the applicant's hardship. It directed the applicant to pay Kshs.200,000/= up-front by 30th July 2015, and thereafter liquidate the balance in monthly instalments of Kshs.50,000/= from end of August 2015 until payment in full. The prayers for stay and waiver of interest were effectively not granted as sought. Judgment delivered at Nairobi on 26th June 2015 by Abuodha J.

Key legal issues

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01

Whether the Court should allow payment of the decretal sum by instalments

Holding

Yes, but on varied terms: an up-front payment of Kshs.200,000/= followed by monthly instalments of Kshs.50,000/= from end of August 2015.

Reasoning

The Court applied the Jabali principles, balancing the applicant's financial hardship (eviction from premises, loan repayments to Family Bank) against the claimants' right to enjoy the fruits of judgment. Given the claimants' low earnings and the ex parte nature of the judgment, a balance was struck between the windfall and the applicant's circumstances.

p. 2
02

Whether the Court should be deterred by the functus officio objection

Holding

The Court proceeded to determine the application on its merits, implying the objection did not bar consideration of instalment payments.

Reasoning

The claimant argued the Court had become functus officio after judgment. The Court nonetheless analysed the application and granted orders, treating an application for instalment payment as a proper exercise of its discretion post-judgment rather than a re-opening of the concluded suit.

p. 1
03

Whether the Court can waive interest levied on the judgment sum

Holding

No waiver of interest was granted; the objection that the Court lacks power to waive or vary interest and costs was not disturbed.

Reasoning

The claimant opposed waiver on the ground that the Court has no power or authority to waive or vary interest and costs awarded. The final orders made no provision for waiver, effectively rejecting that prayer.

p. 1

Legal principles established

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  • An application to settle the decretal sum by instalments is a matter for the discretion of the Court, which must balance the interests of both parties.
  • In instalment applications, the Court considers the circumstances under which the debt was contracted, the conduct of the debtor, his financial position and the bona fides in offering to pay a fair portion of the debt.
  • The Court must guard against unreasonably delaying the decree-holder from enjoying the fruits of judgment while being sensitive to the judgment debtor's financial position.

Court orders

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  1. 1.The applicant to pay up-front the sum of Kshs.200,000/= on or before 30th July, 2015
  2. 2.The applicant to thereafter liquidate the balance of the decretal sum in monthly instalments of Kshs.50,000/= until payment in full with effect from end of August, 2015

Authorities

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Cases cited (3)

  • Jabali Alidina v. Lentura Alidina
  • Freight Forwarders Ltd v. Eliek and Elsek (K) Limited
  • Rosengrens Ltd v. Safe Deposit Centre
    (1984) 3 ALLER 198
Jurisdiction invoked
Inherent discretion of the Court over execution and settlement of its decree (not expressly stated in the judgment)

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, "Bernard Kuria Mwangi & 2 others v Kasturi Limited [2015] KEELRC 809 (KLR)", Case Analysis (2015). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/809/eng@2015-06-26

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