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ELRCDismissedNot stated in extract· [2015] KEELRC 1429 (KLR)

Thomas Sila Nzivo v Bamburi Cement Limited [2015] KEELRC 1429 (KLR)

Employment and Labour Relations Court
13 February 2015
JRJames Rika
235 words in judgment
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The bottom line

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A Kenyan employment court refused to delay a Kshs.354,923 award because the employer tried to raise a loan deduction claim it had never argued during the actual case.

What this practically means

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Executive summary

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The Court had previously delivered an Award on 28th November 2014 ordering the Respondent to pay the Claimant Kshs.354,923. The Claimant sought to execute the decree, prompting the Respondent to file an application on 9th January 2015 for stay of execution, supported by the affidavit of Betty Kanyagia, the Respondent's General Counsel, sworn the same day. The Respondent argued that if all deductions were factored in, the sum awarded would be in the negative, apparently relying on a loan allegedly owed to Citibank by the Claimant. The Claimant opposed the application through an affidavit sworn on 19th January 2015. Counsel Mr. Njeru appeared for the Respondent and Mr. Oddiaga for the Claimant. The Court held that the Citibank loan was not part of the Respondent's pleadings or evidence and was never counterclaimed; all claims should have been channelled through the Court proceedings. The application was found to introduce new claims without giving the Claimant the benefit of challenging them in a proper hearing. The Court ruled that the only deductions permissible outside the parties' pleadings and evidence are statutory deductions. The application dated 9th January 2015 was rejected, with costs of the application awarded to the Claimant. Judgment delivered at Mombasa on 13th February 2015 by James Rika, Judge.

Key legal issues

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01

Whether unpleaded deductions (a Citibank loan) could justify stay of execution

Holding

They could not; only statutory deductions are permissible outside the pleadings and evidence, and new claims must be raised through proper Court proceedings

Reasoning

The Court noted the loan allegedly owed to Citibank was not part of the Respondent's pleadings or evidence and was never counterclaimed. Allowing the application would introduce new claims without giving the Claimant the benefit of challenging them at a proper hearing. Accordingly only statutory deductions could be made outside the pleadings, and the stay application failed.

p. 1

Legal principles established

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  • Only statutory deductions may be made from an award outside the parties' pleadings and evidence; unpleaded claims cannot be raised through a stay application

Court orders

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  1. 1.The application dated 9th January 2015, filed by the Respondent is rejected
  2. 2.Costs of the application to the Claimant
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the award; no specific constitutional/statutory provision stated

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, "Thomas Sila Nzivo v Bamburi Cement Limited [2015] KEELRC 1429 (KLR)", Case Analysis (2015). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1429/eng@2015-02-13

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