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ELRCPartially AllowedNot stated in the extract· [2023] KEELRC 2316 (KLR)

Shitoko v Maxiguard Equities Limited (Employment and Labour Relations Cause 303 of 2014) [2023] KEELRC 2316 (KLR)

Employment and Labour Relations Court
3 October 2023
HWHellen Wasilwa
1,534 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused tiny monthly instalments on a judgment debt, instead ordering half the decretal sum within 30 days and the balance in five instalments.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court (Hellen Wasilwa, J) delivered virtually on October 3, 2023 on a Notice of Motion dated June 19, 2023 by the judgment debtor (through its Director, Josephine Kagendo Gichuru). The application sought leave for the firm of Mongeri & Co. Advocates to come on record, a stay of execution of the decree, notice to show cause, warrants of arrest and taxation, and leave to liquidate the decretal sum in monthly instalments of Kshs. 10,000, premised on the applicant's illness and lack of other income. The respondent opposed, contending there was no evidence of illness or financial hardship, that the proposed instalments were so low as to take over two years for the decretal sum and a further two years for costs, and that execution had not commenced since the Bill of costs had not been taxed, rendering the stay prayer premature. The court granted the unopposed prayer for leave to come on record. It declined the proposed instalments of Kshs. 10,000 per month, noting the absence of proof of illness or accounts and that such instalments would unfairly delay a claimant who had waited about nine years since 2014 for the fruits of judgment. Instead, the court structured payment: half the decretal sum within 30 days, the balance in five equal instalments, with execution to proceed in default, and costs in the cause.

Key legal issues

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01

Whether instalment payment of the decretal sum should be allowed

Holding

Refused as proposed (Kshs. 10,000/month); court substituted a structured payment of half the decretal sum in 30 days and the balance in 5 equal instalments

Reasoning

The court found the applicant did not attach documents proving the alleged illness or accounts showing inability to pay. The decretal sum exceeds Kshs. 200,000 and the proposed instalments would take about two years, which the court considered unfair to a claimant who had waited roughly nine years since 2014 for the fruits of judgment. The court nonetheless exercised discretion to allow a structured payment plan with execution in default.

p. 4
02

Leave for the firm of Mongeri & Co. Advocates to come on record

Holding

Granted as unopposed

Reasoning

The court noted there was no opposition to the prayer for the incoming firm to come on record and exercised its discretion to allow it. No further conditions were imposed on this head of the application.

p. 3

Legal principles established

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  • An application to pay a decretal sum in instalments is a discretionary remedy granted or refused on the circumstances of the case, and the debtor must establish bona fides and financial position

Court orders

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  1. 1.Leave granted to the firm of Mongeri & Co. Advocates to come on record
  2. 2.½ the decretal sum to be paid within 30 days
  3. 3.The balance to be paid in instalments of 5 equal amounts until payment in full
  4. 4.In default, execution may proceed
  5. 5.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 rule 1 & 15
  • Civil Procedure RulesOrder 10 rule 11
  • Civil Procedure RulesOrder 22 rule 22 & 52
  • Civil Procedure RulesOrder 42 rule 6
  • Civil Procedure RulesOrder 21 rule 8 & 9 and rule 12(2)
  • Civil Procedure RulesOrder 2 rule 22
  • Civil Procedure ActSections 1A, 1B, 3A

Cases cited (4)

  • Botanics Kenya Ltd v Ensign Food (K) Ltd
    [1959]
  • A Rajabali Alidina v Remtulla Alidina & Another
    [1961] EA 565
  • Keshvaji Jethabhai & Bros Limited v Saleh Abdulla
    [1959] EA
  • TK Advocates v Baringo County Government
    [2018] eKLR
Jurisdiction invoked
Order 51 rule 1 & 15, Order 10 rule 11, Order 22 rule 22 & 52, Order 42 rule 6, Order 21 rule 8 & 9, and Order 2 rule 22 of the Civil Procedure Rules; sections 1A, 1B 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, "Shitoko v Maxiguard Equities Limited (Employment and Labour Relations Cause 303 of 2014) [2023] KEELRC 2316 (KLR)", Case Analysis (2023). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2316/eng@2023-10-03

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