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ELRCDismissedCause No 485 of 2017· [2022] KEELRC 299 (KLR)

Evans Ooko Nyamota v Beemtho Service Ltd [2022] KEELRC 299 (KLR)

Employment and Labour Relations Court
21 April 2022
1,251 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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The Respondent/Applicant moved the Employment and Labour Relations Court by application dated 2nd November 2021 seeking, among other things, a declaration that a consent filed on 4.6.2021 reducing the decretal sum from Kshs 378,438 to Kshs 200,000 was binding and could not be enforced through execution, a stay of execution, leave to pay the taxed costs of Kshs 85,280 in nine monthly installments, and that the auctioneer's costs be borne by the claimant. The applicant averred that after an ex parte judgment and decree, the parties, who are blood brothers, negotiated a reduced decretal sum with Kshs 50,000 paid upfront and the balance in Kshs 10,000 monthly installments, but that the claimant nonetheless instructed auctioneers to proclaim Kshs 468,438.50. The claimant denied ever signing the consent, denied that the identity card referenced was his, and urged the court to allow execution to proceed. Both sides filed written submissions, the applicant relying on Koinange & 13 others v Koinange on evidential burden, and the claimant relying on authorities on the thresholds for stay under Order 42 Rule 6(2) of the Civil Procedure Rules. The court held that the contested consent had never been adopted as an order of the court and could not be relied upon unless the parties jointly moved for its adoption. The court further found the stay aspect res judicata, having previously been determined, and observed that with the consent denied, the decretal sum could only be realized through execution or by agreement. The application was dismissed with costs to the claimant.

Key legal issues

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01

Whether the consent agreement reducing the decretal sum to Kshs 200,000 was binding and enforceable

Holding

The consent was not one the court could rely on because it was contested, was never brought to the court's attention since July 2021, and was never adopted as an order of the court.

Reasoning

The claimant denied signing the consent and denied that the identity card referenced was his. The applicant alleged fraud but adduced no evidence under sections 107 and 108 of the Evidence Act. The court held that a consent not adopted as an order cannot be unilaterally enforced; parties must jointly move the court for adoption before it binds.

p. 2
02

Whether the application for stay of execution was maintainable

Holding

The stay aspect was res judicata, having previously been brought to the court and determined.

Reasoning

The court found that the issue of stay had already been litigated and determined in the same matter. Re-litigating it in the present application offended the doctrine of res judicata, and the court declined to entertain it afresh.

p. 2
03

Mode of realization of the decretal sum where the consent is denied

Holding

Payment can only be realized through execution or by agreement of the parties.

Reasoning

Having found the consent unreliable and unadopted, the court held that no consensual installment regime existed. The decree therefore remained executable in the ordinary way unless the parties voluntarily agreed otherwise.

p. 2

Legal principles established

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  • A consent filed in court but never adopted as an order of the court cannot be relied upon or enforced against a party who denies it, unless the parties jointly move the court for its adoption.
  • An application on an issue already determined by the court is barred by res judicata.
  • Where a consent on mode of payment is denied and not adopted, the decretal sum can only be realized through execution or by fresh agreement of the parties.

Court orders

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  1. 1.The application dated 2nd November 2021 is dismissed with costs

Authorities

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Legislation

  • Evidence Actsections 107 and 108
  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (4)

  • Koinange & 13 others v Koinange
    [1986] KLR 23
  • Naliaka Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Chairman Cooperative Tribunal and 8 others Ex-parte Management Committee Konza Ranching and Farming Cooperative Society Limited
    [2014] eKLR
  • Rayat Trading Co. Limited v Bank of Baroda and Tetezi House Ltd
    [2018] eKLR
Jurisdiction invoked
Inherent jurisdiction of the Employment and Labour Relations Court over its own decrees; application under certificate of urgency (stay of execution invoked via Order 42 Rule 6(2) of the Civil Procedure Rules as argued by the parties)

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, "Evans Ooko Nyamota v Beemtho Service Ltd [2022] KEELRC 299 (KLR)", Case Analysis (2022). Cause No 485 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/299/eng@2022-04-21

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