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ELRCDismissedNot stated in the judgment· [2018] KEELRC 1779 (KLR)

Rosslyn Njoki Kamau v Emomentum Interactive Systems Limited [2018] KEELRC 1779 (KLR)

Employment and Labour Relations Court
3 May 2018
680 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused a company's request to pay a judgment debt in instalments because its own financial records showed it could afford to pay.

What this practically means

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Executive summary

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The Respondent filed a Notice of Motion dated 23rd March 2018 in the Employment and Labour Relations Court at Nyeri seeking leave for the firm of M/s Kiragu Wathuta & Co. Advocates to come on record, a stay of execution of a decree, and leave to pay the decretal sum of slightly over Kshs. 500,000/- by 10 equal monthly instalments beginning 1st June 2018. A subsequent application dated 20th April 2018 sought sanctions against the Claimant and the auctioneer for the execution levied. The Claimant opposed, filing a replying affidavit deponing that the Respondent was financially sound, holding over Kshs. 7,486,000/- in its account, paying directors' allowances of Kshs. 840,000/-, and serving top international IT firms. Nzioki wa Makau J gave an ex tempore ruling dismissing the motion and reserved reasons. Applying A. Rajabali Alidina v Remtulla & Another (1961) E.A. 565, the court held that the discretion to allow instalment payments must be exercised judicially, considering the circumstances of the debt and the debtor's financial bona fides, and that mere hardship is insufficient. The Respondent's own filings showed directors' emoluments exceeding the decretal sum, no bank statements or cash flow analysis established incapacity, and allegations that the attached goods belonged to another party were unproved, with no objection proceedings taken. The motion was dismissed with costs to the Claimant, who was at liberty to execute the decree if the attached goods had not been realized.

Key legal issues

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01

Whether the Respondent was entitled to stay of execution and payment by instalments

Holding

The application was dismissed because the Respondent had capacity to pay, its bona fides were wanting, and it offered no bank statements or cash flow analysis proving financial incapacity.

Reasoning

The court held that a debtor's mere hardship does not justify instalment payments; the applicant must demonstrate financial bona fides. Here the Respondent's own financial disclosures showed director allowances and emoluments exceeding the decretal sum of slightly over Kshs. 500,000/-. Expenses could be cut back to meet the decree. Allegations that the attached goods belonged to another party were unproved, with no objection proceedings taken.

p. 2
02

Whether sanctions should issue against the Claimant and the auctioneer

Holding

Sanctions were refused as the claim of third-party ownership of the attached goods was a mere allegation.

Reasoning

The Respondent asserted the attached goods belonged to another party or were tools of trade, but produced no proof and took out no objection proceedings as the law requires. In the absence of a competing claim over the goods, there was no basis for sanctions against the Claimant or the auctioneer for levying execution.

p. 2

Legal principles established

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  • In deciding on payment of a decretal sum by instalments, the court considers the circumstances in which the debt was incurred and the financial bona fides of the debtor; mere hardship is not sufficient
  • The discretion to order payment by instalments must be exercised judicially, and the onus is on the applicant to show entitlement to the indulgence

Court orders

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  1. 1.The Notice of Motion dated 23rd March 2018 is dismissed with costs to the Claimant
  2. 2.The Claimant is at liberty to execute the decree if the attached goods were not realized in satisfaction of the decree

Authorities

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Legislation

  • Civil Procedure CodeNot specified

Cases cited (1)

  • A. Rajabali Alidina v Remtulla & Another
    (1961) E.A. 565
Jurisdiction invoked
Not expressly stated; original employment and labour relations jurisdiction over a decree for stay of execution and payment by instalments under the Civil Procedure Code

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, "Rosslyn Njoki Kamau v Emomentum Interactive Systems Limited [2018] KEELRC 1779 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1779/eng@2018-05-03

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