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ELRCPartially AllowedCause No. 2 of 2019· [2021] KEELRC 2097 (KLR)

Albert Aki Malongo v Chemelil Sugar Co Ltd [2021] KEELRC 2097 (KLR)

Employment and Labour Relations Court
24 February 2021
RSRadido Stephen
713 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 Chemelil Sugar to pay an employee's court award in nine monthly instalments after showing genuine financial hardship, not in full immediately.

What this practically means

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Executive summary

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This ruling by the Employment and Labour Relations Court at Kisumu (Radido Stephen, Judge) dealt with a motion by Chemelil Sugar Co Ltd seeking stay of execution and leave to settle a decree by instalments. The underlying decree, entered on admission in a ruling delivered on 13 February 2020, awarded the Claimant, Albert Aki Malongo, unpaid salaries, pay in lieu of notice and gratuity totalling Kshs 3,935,354/-, with costs and interest, while disputed issues went to trial. After the Respondent paid Kshs 1,400,000/- by two cheques and the Claimant moved to execute, with auctioneers proclaiming the Respondent's properties on 10 September 2020, the Respondent filed an urgent motion on 15 September 2020 seeking stay of execution and leave to pay the decretal sum by monthly instalments of Kshs 250,000/-. The Court certified the motion urgent and issued an interim stay, then directed affidavits and submissions. Court-facilitated settlement talks failed, though the parties narrowed their differences: the Claimant proposed seven monthly instalments, citing uncertainty over the Respondent's privatisation, while the Respondent proposed a longer period of about eleven months, citing financial difficulties. Applying Order 21 Rule 12 of the Civil Procedure Rules, and applying Rajabalil v Ramtulla Alidina & Ar on the judicious exercise of discretion, the Court took judicial notice of the financial pressure on public sugar factories and the privatisation programme. Holding that nine months would be fair, the Court allowed the Motion and ordered the Respondent to settle the outstanding decretal sum by nine equal monthly instalments commencing 1 March 2021, with costs of the Motion to the Claimant.

Key legal issues

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01

Whether sufficient cause was shown to warrant payment of the decretal sum in instalments

Holding

The Motion was allowed; financial difficulties of the publicly-owned sugar factory, judicially noticed in the context of the privatisation programme, constituted sufficient cause.

Reasoning

Order 21 Rule 12 confers a discretionary power to allow payment of a money decree in instalments where sufficient cause is shown. The discretion must be exercised judiciously, not arbitrarily. The Court took judicial notice of the financial pressure on public sugar factories and the privatisation programme. Weighing the parties' competing proposals (7 months by the Claimant, about 11 months by the Respondent), the Court fixed 9 equal monthly instalments as fair.

p. 2

Legal principles established

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  • A court may allow settlement of a money decree in instalments where sufficient cause is shown, exercising its discretion judiciously and not arbitrarily

Court orders

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  1. 1.Stay of execution of the decree pending hearing of the Motion (issued interlocutorily on 16 September 2020)
  2. 2.Respondent to settle the outstanding decretal sum by 9 equal monthly instalments commencing 1 March 2021
  3. 3.Claimant to have costs of the Motion

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 Rule 12

Cases cited (1)

  • Rajabalil v Ramtulla Alidina & Ar
    (1961) E.A. 565
Jurisdiction invoked
Order 21 Rule 12 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, "Albert Aki Malongo v Chemelil Sugar Co Ltd [2021] KEELRC 2097 (KLR)", Case Analysis (2021). Cause No. 2 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2097/eng@2021-02-24

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