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ELRCPartially AllowedCause No 713 of 2017· [2024] KEELRC 954 (KLR)

Atingo v Borderless Tracking Limited (Cause 713 of 2017) [2024] KEELRC 954 (KLR)

Employment and Labour Relations Court
30 April 2024
1,744 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 ruled that money paid to an auctioneer under a payment deal does not reduce the judgment debt, which must still be paid in instalments.

What this practically means

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Executive summary

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This ruling by the Employment and Labour Relations Court at Nairobi (Dr. Jacob Gakeri, Judge) determined a Notice of Motion dated February 27, 2024 by the Respondent/Judgment-debtor, expressed under Section 3A of the Civil Procedure Act and Order 40 of the Civil Procedure Rules, 2010, seeking leave to pay the balance of the decretal amount of Kshs.64,177.59 in two monthly instalments following a proclamation of attachment by Beta Base Auctioneers. The Claimant/Decree-holder opposed the application in a replying affidavit, asserting it was brought in bad faith to delay execution, that counsel for the judgment-debtor had pleaded for instalments on condition the judgment-debtor paid the auctioneer's charges, and that the Kshs.120,000/= paid to the auctioneer was agreed fees, not part of the decretal sum. The court framed the salient issue as the amount payable to the decree-holder after the payments of Kshs.200,000/= to the decree-holder's advocate and Kshs.120,000/= to the auctioneer. Examining the sequence and timing of the payments on February 26, 2024, and the absence of any affidavit from the judgment-debtor's contact person, the court found the decree-holder's explanation more probable: the indulgence was conditional on the judgment-debtor paying the auctioneer charges. It also rejected the claim that the judgment-debtor was unaware of the judgment. The court ordered the judgment-debtor to pay the balance of Kshs.184,177.56 in three monthly instalments effective end of March 2024, with each party bearing its own costs.

Key legal issues

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01

Whether the Kshs.120,000/= paid to the auctioneer was part of the decretal sum or auctioneer fees

Holding

The payment was of auctioneer charges pursuant to the arrangement made when the Decree-holder indulged the Judgment-debtor; it did not reduce the decretal sum

Reasoning

The court examined the sequence of payments on February 26, 2024: the auctioneer was paid at 5.35 pm and the Decree-holder's counsel was paid Kshs.200,000/= only after 7.10 pm. The supporting affidavit never asserted the auctioneer payment was for transmission to the decree-holder. The auctioneer claimed no fees, suggesting he had been paid pursuant to the agreement. The decree-holder's explanation was therefore more probable.

p. 4
02

Whether the judgment-debtor was unaware of the judgment as deposed by its counsel

Holding

The judgment-debtor was at all times privy to the proceedings and was represented by counsel during the hearing

Reasoning

The court rejected the claim that the judgment-debtor was unaware of the judgment, noting it tendered evidence at the hearing and was represented, albeit by counsel other than the advocate on record. This undermined the applicant's assertion that mistakes of counsel should not be visited on a litigant.

p. 3

Legal principles established

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  • Where a decree-holder indulges a judgment-debtor with payment by instalments on condition that the judgment-debtor pays auctioneer charges, amounts paid to the auctioneer on that footing are not part of the decretal sum

Court orders

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  1. 1.The Judgment-debtor shall pay the balance of the decretal sum other than the Kshs.200,000/= already paid to the Decree-holder's counsel, being the sum of Kshs.184,177.56, in 3 monthly instalments effective end of March 2024
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 1B
  • Civil Procedure Rules, 2010Order 40 Rules 1, 2, 3 and 4
  • Civil Procedure Rules, 2010Order 19 Rule 3
  • Civil Procedure Rules, 2010Order 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 40 Rules 1, 2, 3 and 4 of the Civil Procedure Rules, 2010

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, "Atingo v Borderless Tracking Limited (Cause 713 of 2017) [2024] KEELRC 954 (KLR)", Case Analysis (2024). Cause No 713 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/954/eng@2024-04-30

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