Wilson Mwaura Ngigi v Nature Expeditions Africa Limited [2021] KEELRC 1452 (KLR)
The bottom line
#A Kenyan court refused to review an employment judgment over COVID-19 financial hardship but gave the debtor a strict two-payment schedule to clear the debt.
What this practically means
#Executive summary
#Key legal issues
#Whether the court should review its judgment and vary the award of interest
The prayer for review failed; financial constraints due to COVID-19 do not constitute any of the permissible grounds for review under Rule 33(1).
Rule 33(1) permits review on discovery of new and important matter, error apparent on the face of the record, need for clarification, or any other sufficient reason. The Applicant's COVID-19-related financial constraints arose after judgment, are unrelated to the case, and cannot amount to new evidence, an error apparent on the record, a need for clarification, or any other sufficient reason.
Whether the Judgment Debtor should be allowed to pay in installments
Although the application was not allowed as sought, the court exercised its discretion under Order 21 Rule 12 to direct structured payment of the decretal amount.
Payment by installments is a discretionary remedy requiring demonstration of sufficient cause and bona fides. The Applicant's offer of Kshs 100,000 monthly installments was never actualized, the debt predated the pandemic by over a year, and the decree holder had waited seven years. The court nonetheless directed payment of half the outstanding amount within 14 days and the balance within 30 days, with liberty to execute in default.
Whether the respondent should bear the Auctioneer's costs
The issue was not determined because it was not pleaded; it was introduced only in the further affidavit and submissions.
The issue of auctioneer costs and the allegedly erroneous decree did not appear in the Notice of Motion, its grounds, or the Supporting Affidavit. It was introduced subtly in the further affidavit and expanded in submissions. Since parties are bound by their pleadings, the court declined to determine it.
Legal principles established
#- Review proceedings must be confined to the grounds in Rule 33(1) of the ELRC (Procedure) Rules 2016; financial hardship such as that caused by COVID-19 does not qualify.
- Parties are bound by their pleadings; issues raised for the first time in submissions cannot be determined.
- The power to order payment of a decretal amount by installments is discretionary and requires the judgment debtor to demonstrate sufficient cause and bona fides.
- An unactualized offer to pay in installments amounts to a delay tactic and abuse of court process.
Court orders
#- 1.The Applicant/Decree Debtor shall pay half the outstanding amount within fourteen (14) days
- 2.The balance to be paid within 30 days
- 3.Each party to bear its own costs
- 4.In default of (a) and (b) above the Respondent/Decree Holder shall be at liberty to execute
- Jurisdiction invoked
- Section 12(3) and 16 of the Employment and Labour Relations Court Act, Articles 50(1) and 159(2) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilson Mwaura Ngigi v Nature Expeditions Africa Limited [2021] KEELRC 1452 (KLR)", Case Analysis (2021). Not stated in judgment (Notice of Motion dated 16th September 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1452/eng@2021-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.