Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in the judgment· [2018] KEELRC 1871 (KLR)

George Kaleve Musyoki v Nol Turesh Loitokitok Water Sanitation Co. Ltd [2018] KEELRC 1871 (KLR)

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

The bottom line

#

A Kenyan court refused to stop execution against a water company because it showed no real effort to pay a Kshs 2 million judgment debt.

What this practically means

#

Executive summary

#
This ruling of the Employment and Labour Relations Court at Nyeri, delivered by Nzioki wa Makau J on 28th May 2018, disposed of the Respondent's notice of motion dated 2nd February 2018. The Respondent, a water and sewerage service provider, sought leave for the firm of Anthony M. Mulekyo Advocates to come on record, a stay of execution of warrants of attachment issued on 16th January 2018, and an order to liquidate the decretal sum by monthly instalments of Kshs. 50,000/-. It argued that payment of about Kshs. 2 million would impair provision of water and sewerage services contrary to Article 43(d) of the Constitution and Section 65 of the Water Act, and denied instructing its former advocates to enter a consent on deposit of the decretal sum. The Claimant opposed, asserting the Respondent had ignored the judgment of 24th June 2016, having reinstated him on 1st July 2016 without paying salary arrears or the decretal sum, and that the Respondent had not demonstrated an arguable appeal or that the appeal would be rendered nugatory. Applying Halai & Another v Thornton & Turpin (1963) Ltd, the court required sufficient cause, substantial loss, security and absence of unreasonable delay. It found no evidence that payment would impair services, no security offered beyond the instalment proposal, no grounds of a time-barred appeal, and no effort to settle the decree since reinstatement. Applying Jabali Alidina v Lentura Alidina on instalments, the court found no sufficient reason for indulgence. The application was dismissed with costs to the Claimant and execution was allowed to proceed.

Key legal issues

#
01

Whether the requirements for a stay of execution were met

Holding

The requirements were not met; the application was dismissed and execution allowed to proceed

Reasoning

Applying Halai & Another v Thornton & Turpin (1963) Ltd, the court found the Respondent had not established sufficient cause, demonstrated substantial loss, or furnished security. The application also followed an attempt to execute, the intended appeal was time barred, and no grounds of appeal were set out. Part compliance with the 2016 judgment by reinstating the Claimant showed awareness of the decree, yet no effort had been made to settle the decretal sum.

p. 2
02

Whether payment by instalments should be granted

Holding

Instalment payment was refused for want of sufficient reason

Reasoning

Relying on Jabali Alidina v Lentura Alidina, the court held the discretion to allow instalment payment is judicial, not arbitrary, and the applicant bears the onus of showing sufficient reason. The Respondent's offer of Kshs. 50,000/- monthly was not supported by any prior effort to settle the decree after reinstatement of the Claimant, and the court found the motion unfit for grant.

p. 2

Legal principles established

#
  • An applicant for stay of execution must establish sufficient cause, substantial loss from refusal, furnish security, and apply without unreasonable delay
  • The discretion to order payment of a decretal amount in instalments must be exercised judicially and the onus is on the applicant to show sufficient reason for the indulgence

Court orders

#
  1. 1.Dismissal of the Respondent's notice of motion application dated 2nd February 2018 and filed on 5th February 2018
  2. 2.Costs of the application to the Claimant
  3. 3.Order that execution should proceed

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 43(d)
  • Water ActSection 65
  • Civil Procedure Code

Cases cited (2)

  • Halai & Another v Thornton & Turpin (1963) Ltd
    [1990] KLR 365
  • Jabali Alidina v Lentura Alidina
    [1961] EA 565
Jurisdiction invoked
Not expressly stated; the court exercised its discretion over stay of execution of its own decree in a employment claim

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "George Kaleve Musyoki v Nol Turesh Loitokitok Water Sanitation Co. Ltd [2018] KEELRC 1871 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1871/eng@2018-05-28

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