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ELRCDismissedCause No 113 of 2019· [2019] KEELRC 136 (KLR)

Elijah Opondo Ochiel v Samson Mijoro & 2 others [2019] KEELRC 136 (KLR)

Employment and Labour Relations Court
19 December 2019
RSRadido Stephen
414 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 refused to jail an employer over unpaid salary, ruling civil jail is a last resort after normal debt collection steps fail.

What this practically means

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Executive summary

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By orders of 13 March 2019, the Court directed the Respondents to pay the Claimant salary arrears of Kshs 349,290/- and to remit PAYE deductions of Kshs 336,989/- to the Kenya Revenue Authority, within set timelines. The Respondents did not comply fully, prompting the Claimant on 30 April 2019 to seek their committal to civil jail for disobeying the Court orders. The 3rd Respondent filed a replying affidavit on 25 October 2019 and the application was heard on 18 November 2019. Delivery of the ruling, set for 29 November 2019, was deferred after the Respondents disclosed a payment of Kshs 60,000/- and a commitment to pay the balance of Kshs 70,000/- within two weeks, but the balance remained unpaid as confirmed by the Claimant's advocate on 16 December 2019. The Court found it undisputed that the Respondents had paid only Kshs 200,000/- of the salary arrears, plus a further Kshs 60,000/- on 18 November 2019, leaving Kshs 149,290/- outstanding, and that the PAYE arrears had not been remitted. Nevertheless, the Court declined to commit the Respondents to civil jail, holding that civil jail is a last-resort mode of executing a money decree, the normal mode being attachment and sale of the judgment debtor's assets, and that the Claimant had not demonstrated an attempt at the normal mode of execution. The application was dismissed with no order on costs. Judgment delivered at Nairobi on 19 December 2019 by Radido Stephen, Judge.

Key legal issues

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Whether committal to civil jail was the appropriate mode of execution for non-payment of a money decree

Holding

Committal to civil jail was refused because it is a last resort and the Claimant had not first attempted execution by attachment.

Reasoning

The Court identified several modes of executing a money order, including attachment and sale of the judgment debtor's assets and committal to civil jail. It held that committal to civil jail should ordinarily be a last resort, with attachment being the normal mode. As the Claimant had not shown that he attempted attachment without success, sending the Respondents to civil jail would not serve the interests of justice, notwithstanding the admitted non-compliance with the payment orders.

p. 1

Legal principles established

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  • Civil jail is a last-resort mode of executing a money decree; the normal mode is attachment and sale of the judgment debtor's assets.

Court orders

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  1. 1.Application for committal of the Respondents to civil jail dismissed with no order on costs
Jurisdiction invoked
Enforcement of orders of the Employment and Labour Relations Court (contempt/committal to civil jail application); specific provision not 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, "Elijah Opondo Ochiel v Samson Mijoro & 2 others [2019] KEELRC 136 (KLR)", Case Analysis (2019). Cause No 113 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/136/eng@2019-12-19

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