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ELRCPartially AllowedNot stated in the judgment as provided· [2020] KEELRC 255 (KLR)

Gideon Inzayi Madahana v Session Clerk & another [2020] KEELRC 255 (KLR)

Employment and Labour Relations Court
10 November 2020
JRJames Rika
651 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Judgment had been entered for the Claimant against the Respondents for Kshs. 686,400 plus costs and interest on 5th December 2019, and a Party and Party Bill of Costs was taxed at Kshs. 206,828 on 31st August 2020. On 2nd September 2020 the Respondents applied for a stay of execution, postponement of execution until February 2021 or the reopening of schools, and leave to liquidate the decretal sum - by then Kshs. 893,228 - in monthly instalments of Kshs. 50,000. They deponed through Loise Wanjiku, Secretary to the 2nd Respondent, that the 2nd Respondent is a non-profit Christian organization operating a school dependent on fees as its sole income, which had been devastated by the Government's Covid-19 directive suspending schooling for the 2020 academic year, and that it had paid Kshs. 150,000 as a show of commitment. The Claimant opposed, terming the application an afterthought and a delaying tactic, and noting the Kshs. 150,000 was paid only upon filing the application. The parties consented to determination on the record and filed submissions. The Court found the pandemic genuinely impaired the Respondents' ability to pay, but held the Claimant's right to enjoy the fruits of litigation must be carefully balanced against that hardship. It granted structured relief rather than a stay: payment of the taxed costs of Kshs. 206,828 by 1st December 2020, the balance of the principal with interest by instalments of Kshs. 150,000 monthly from 28th February 2021, a default clause voiding the indulgence and permitting execution on the entire balance, and no order on the costs of the application. Delivered at Mombasa on 10th November 2020 by James Rika, Judge.

Key legal issues

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01

Whether the decretal sum may be satisfied by instalments in light of the Respondents' financial hardship caused by the Covid-19 pandemic

Holding

Yes - execution was postponed and the decree structured into instalments, but on terms protecting the Claimant's right to expeditious settlement, with costs paid upfront and a default clause voiding the indulgence.

Reasoning

The Court accepted that the 2nd Respondent is a non-profit Christian organization dependent on school fees as its sole income, and that the Government suspended schooling in 2020 to contain Covid-19, leaving the school operating at a loss. It acknowledged the Claimant's right to the fruits of litigation but held that this right must be balanced against the Respondents' diminished capacity to pay during the pandemic. The Court thus varied the mode of execution rather than staying it outright, adopting instalments of Kshs. 150,000 - higher than the Respondents' proposal of Kshs. 50,000 - and requiring payment of taxed costs by 1st December 2020, with liberty to execute on default of any instalment.

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Legal principles established

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  • A judgment debtor's inability to pay arising from the Covid-19 pandemic may justify an instalment payment order, but the decree-holder's right to enjoy the fruits of litigation must be balanced against the debtor's ability to pay.

Court orders

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  1. 1.The Respondents shall pay to the Claimant the sum of Kshs. 206,828 in costs on or before 1st December 2020
  2. 2.The balance of the principal sum together with accrued interest shall be paid in monthly instalments of Kshs. 150,000 from 28th February 2021 and on or before the 30th date of subsequent months until payment in full
  3. 3.In default of any one instalment, the orders shall become void and the Claimant shall be at liberty to execute on the entire balance of the decree
  4. 4.No order on the costs of the Application
Jurisdiction invoked
Original employment and labour relations jurisdiction; inherent discretion in the execution of its own decree

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, "Gideon Inzayi Madahana v Session Clerk & another [2020] KEELRC 255 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/255/eng@2020-11-10

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