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ELRCPartially AllowedNot stated in the judgment· [2021] KEELRC 1432 (KLR)

Bertha Awuor Kowido v Speed Capital Limited [2021] KEELRC 1432 (KLR)

Employment and Labour Relations Court
10 June 2021
MMM. Mbaru
1,086 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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Speed Capital Limited, the judgment debtor, applied under Order 21 Rule 12, Order 22 Rule 22 and Order 51 Rule 1 of the Civil Procedure Rules and sections 63(e), 1A, 1B, 3 and 3A of the Civil Procedure Act for stay of execution of a decree of Ksh.1,030,161 (decretal sum, interest and costs) and leave to pay by instalments of Ksh.50,000 per month from 5th February, 2021. It was supported by the affidavit of James Karebe, the chief operating officer, who attributed the inability to pay to business constraints caused by the Covid-19 pandemic, warning that proclamation of the company's moveable goods would bring the business to a standstill. The claimant opposed, pointing out that judgment had been delivered on 25th October, 2019, that the respondent had participated in taxation and failed to pay, that the instalment offer would not settle the debt until November, 2022, and that the respondent's website showed it was still trading and providing services 24 hours. Both parties filed written submissions. The court applied Order 21 Rule 12 and the East African authority Keshavji Jethabhai & Brothers Ltd v Saleh Abdul [1959] EA, holding that hardship alone is insufficient and bona fides are the predominant factor. Finding no financial returns filed and no payments made, and noting the claimant had earned Ksh.112,500 monthly, the court allowed the application but on modified terms: stay of execution conditional on payment of Ksh.112,500 within 30 days and monthly instalments of Ksh.112,500 until payment in full, stay lapsing on default, with costs to the respondent/judgment debtor.

Key legal issues

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01

Whether sufficient reason existed to allow payment of the decretal sum by instalments under Order 21 Rule 12

Holding

Stay and instalments were granted, but on terms varied by the court: the respondent's Covid-19 hardship claim was unsupported and its Ksh.50,000 offer was unreasonably low, so the court fixed instalments at Ksh.112,500 per month backdated to 4th February, 2021, with stay lapsing on default.

Reasoning

Order 21 Rule 12 empowers the court to order payment by instalments for sufficient reason. Applying Keshavji Jethabhai & Brothers Ltd v Saleh Abdul, hardship alone is not enough; bona fides matter. Judgment predated the pandemic, no financial returns were filed, no payments had been made despite an offer dating to 5th February, 2021, and the claimant had earned Ksh.112,500 monthly, making that a fairer instalment figure.

p. 2

Legal principles established

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  • Mere inability to pay in full at once is not a sufficient reason for leave to pay by instalments; the judgment debtor must show bona fides, and each case is decided on its own merits

Court orders

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  1. 1.Stay of execution of the judgment and all consequential orders issued herein on condition that the respondent pay the decretal sum in instalments
  2. 2.The respondent shall pay Ksh.112,500 due from 5th February, 2021 to date within the next 30 days
  3. 3.The balance shall be paid in equal instalments of Ksh.112,500 each 5th day of the month until payment in full
  4. 4.In default, the stay shall automatically lapse
  5. 5.The respondent shall meet the costs of the application
Jurisdiction invoked
Order 21 Rule 12, Order 22 Rule 22 and Order 51 Rule 1 of the Civil Procedure Rules and sections 63(e), 1A, 1B, 3 and 3A of the Civil Procedure Act

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, "Bertha Awuor Kowido v Speed Capital Limited [2021] KEELRC 1432 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1432/eng@2021-06-10

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