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ELRCPartially AllowedCause No 126 of 2015· [2020] KEELRC 279 (KLR)

Japheth Muita Githaiga v Presbyterian University of East Africa [2020] KEELRC 279 (KLR)

Employment and Labour Relations Court of Kenya
15 October 2020
HWHellen Wasilwa
1,624 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed a university to pay an employee's gratuity award in instalments, but only after paying half the debt within 30 days.

What this practically means

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Executive summary

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This was an application dated 28 July 2020 by the judgment debtor (a university) in a cause in which judgment was delivered in November 2019 awarding the claimant his gratuity following his 2015 resignation, with interest and taxed costs. The applicant sought leave for new advocates to come on record, an order that the decretal amount of approximately Kshs. 2,030,815 be paid in monthly instalments of Kshs. 200,000, and a stay of execution. It relied on the financial hardship caused by the Covid-19 pandemic and the closure of universities, disputing the interest component computed on the warrants of attachment. The respondent opposed the application, arguing the applicant was guilty of laches and inordinate delay, had failed to demonstrate bona fides or produce accounts, had previously proposed instalment settlements and not honoured them, and that the application merely sought to deny a 70-year-old decree holder the fruits of judgment. Both parties filed written submissions; the respondent relied on KTK Advocates v Baringo County Government and Keshbal Jethabhai & Brothers Ltd v Saleh Abdul on the principles governing instalment payments. The court, Wasilwa J, accepted that the Covid-19 economic downturn was a reality for the applicant but stressed that gratuity is an employment benefit which cannot be withheld for long. It granted stay on conditions: half the balance to be paid within 30 days, the remainder in monthly instalments of Kshs. 200,000, with execution to issue on default of any instalment. Costs were ordered in the cause. The application was therefore partially allowed.

Key legal issues

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01

Whether a judgment debtor unable to pay a lump sum should be permitted to pay by instalments

Holding

Yes, but the discretion is conditional: the court required half the balance within 30 days and monthly instalments thereafter, with execution on default of any instalment

Reasoning

The court acknowledged the prevailing Covid-19 economic situation and the scaling down of the applicant's activities as a genuine reality. However, it weighed this against the nature of the decretal amount as gratuity, an employment benefit that cannot be withheld for long, and so granted stay subject to strict conditions rather than the lengthy deferral the applicant sought.

p. 3

Legal principles established

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  • Stay of execution and payment by instalments may be granted on conditions, including a substantial down payment, with execution issuing on default

Court orders

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  1. 1.Stay of execution granted on condition that the Applicant pays ½ of the balance owing within 30 days
  2. 2.The remainder of the decree be settled in instalments of Kshs. 200,000/= per month
  3. 3.In default of any one instalment, execution to issue
  4. 4.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 Rule 2

Cases cited (2)

  • KTK Advocates v Baringo County Government
    [2018] eKLR
  • Keshbal Jethabhai & Brothers Ltd v Saleh Abdul
    [1959] EA 260
Jurisdiction invoked
Inherent discretion of the Employment and Labour Relations Court and Order 21 of the Civil Procedure Rules

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, "Japheth Muita Githaiga v Presbyterian University of East Africa [2020] KEELRC 279 (KLR)", Case Analysis (2020). Cause No 126 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/279/eng@2020-10-15

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