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ELRCPartially AllowedNot stated in judgment· [2023] KEELRC 947 (KLR)

Kenya Hotels and Allied Workers Union v Nyanza Club (Cause E004 of 2021) [2023] KEELRC 947 (KLR)

Employment and Labour Relations Court
27 April 2023
CBChristine N. Baari
717 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 debtor to pay a Kshs 5.2 million award in instalments, but only after an upfront Kshs 1 million payment proving genuine commitment.

What this practically means

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Executive summary

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This was a ruling on the Respondent/Applicant's notice of motion dated 22nd February 2023 seeking leave to pay a decretal sum of Kshs. 5,227,548/- in monthly instalments of Kshs. 100,000/-. The applicant attributed its financial constraints to the closure of its club during the Covid-19 pandemic and the demolition of its clubhouse by a caretaker committee. The Claimant/Respondent opposed the application through a replying affidavit of Chadwick Oloto Ngono, contending that the applicant had previously disobeyed court orders while financially sound and that the financial report filed did not reflect its true position. The court framed a single issue: whether the applicant should be allowed to pay by instalments. Relying on Order 21 Rule 12 of the Civil Procedure Rules and the criteria in Rajabali Alidina vs Remtulla Alidina (circumstances of the debt, conduct of the debtor, financial position and bona fides), the court held that although the applicant had suffered pandemic-related hardship, it had not demonstrated seriousness or commitment to pay, having earlier failed to comply with orders to file a joint computation of the decretal amount. The court therefore allowed instalment payments only on conditions: payment of Kshs. 1,000,000/- within 30 days, followed by monthly instalments of Kshs. 100,000/- until payment in full, with execution to issue upon default of any instalment. The judgment was delivered at Kisumu on 27th April 2023 by Christine N. Baari, Judge.

Key legal issues

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Whether the judgment debtor should be permitted to satisfy the decree by monthly instalments under Order 21 Rule 12 of the Civil Procedure Rules

Holding

The court granted instalment payment but on conditions reflecting the debtor's conduct: a lump sum of Kshs. 1,000,000/- within 30 days, then monthly instalments of Kshs. 100,000/-, with execution to issue on default

Reasoning

Applying Rajabali Alidina vs Remtulla Alidina, the court weighed the circumstances of the debt, the debtor's conduct, financial position and bona fides. Although the Covid-19 pandemic and demolition of the clubhouse caused financial hardship, the applicant had previously failed to comply with orders to file a joint computation, demonstrating lack of seriousness. Conditional instalments balanced relief to the debtor with protection of the decree-holder.

p. 2

Legal principles established

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  • An order to settle a decretal sum in instalments is a discretionary power of the court which must be exercised judiciously, having regard to the circumstances under which the debt was contracted, the conduct of the debtor, his financial position, and his bona fides in offering to pay a fair proportion of the debt at once.

Court orders

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  1. 1.The Applicant to pay the Claimant/Respondent Kshs. 1,000,000/- of the decretal sum within 30 days of the order
  2. 2.Thereafter the Applicant/Respondent to continue repaying the balance in monthly instalments of Kshs. 100,000 until payment in full
  3. 3.In default of any one instalment, execution to issue

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 Rule 12

Cases cited (2)

  • Rajabali Alidina vs Remtulla Alidina & Another
    [1961] EA 565
  • Nicholas Gitonga Murongi vs Susan Wairimu & 4 Others
    [2021] eKLR
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, "Kenya Hotels and Allied Workers Union v Nyanza Club (Cause E004 of 2021) [2023] KEELRC 947 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/947/eng@2023-04-27

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