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ELRCPartially Allowed· [2025] KEELRC 1186 (KLR)

Chogo v Kamongo Waste Paper Kenya Limited (Employment and Labour Relations Petition E103 of 2023) [2025] KEELRC 1186 (KLR)

Employment and Labour Relations Court
28 April 2025
HWHellen Wasilwa
1,858 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court allowed an employer facing auction of its vehicles to pay a judgment debt in three monthly instalments, but rejected its request for six.

What this practically means

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Executive summary

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The Applicant (the employer and judgment debtor in the underlying petition) filed a Notice of Motion dated 16th January 2025 seeking stay of execution of the ELRC judgment delivered on 11th October 2024, by which it was ordered to pay the Petitioner Kshs. 932,349 for one month's salary in lieu of notice and compensation for unlawful termination. The application followed a proclamation by Bemac Auctioneers dated 14th January 2025 over the Applicant's motor vehicles. The Applicant, citing financial hardship after the covid-19 pandemic, sought leave to pay the decretal sum in six equal monthly instalments, contending the vehicles were essential tools of its business. The Petitioner opposed, arguing the Applicant had not demonstrated substantial loss, the application was filed 111 days after judgment, and sought in the alternative deposit of Kshs. 1,552,346 (decretal sum, interest, costs and auctioneers' charges) in a joint interest-earning account. The Applicant relied on RWW v EKW on substantial loss and on authorities on taxation of costs after execution; the Petitioner relied on James Wangalwa and the Rajabali Alidina instalment test. The Court framed one main issue: whether to grant stay and on what conditions. Holding that the Applicant had not demonstrated its financial difficulties or how much it was willing to pay, the Judge nonetheless exercised discretion and allowed limited stay of execution, directing payment of the decretal sum in three equal monthly instalments commencing 30th May 2025, with execution to issue on default. The six-instalment proposal was not accepted; the stay granted was limited and conditional.

Key legal issues

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01

Whether stay of execution should be granted and on what conditions

Holding

Limited stay of execution granted on condition the Applicant pays the decretal sum in 3 equal monthly instalments commencing 30th May 2025; in default execution to issue

Reasoning

The Court found that the Applicant, though alleging financial hardship caused by the aftermath of the covid-19 pandemic, had not demonstrated those financial difficulties nor indicated how much it was willing to pay. Guided by the Rajabali Alidina test, the Court held none of the grounds had been demonstrated, but nonetheless exercised its discretion in favour of a limited stay with payment in 3 instalments rather than the 6 sought, with execution to issue on default.

p. 4
02

Whether the Applicant should be allowed to settle the decretal sum in 6 instalments

Holding

Refused; instalments granted but in 3, not 6, equal instalments

Reasoning

The Applicant relied on RWW v EKW on substantial loss and proportionality, arguing that attachment of its essential business motor vehicles would shut down operations. The Petitioner countered that the Applicant had not met the prerequisites for stay, that the application was filed 111 days after judgment, and that instalment applications are governed by the Rajabali Alidina test. The Court found the Applicant had not demonstrated the Rajabali Alidina grounds but granted a reduced instalment plan in the exercise of discretion.

p. 4

Legal principles established

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  • In determining an application to pay a decretal sum by instalments the court considers 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
  • Execution is a lawful process and does not by itself amount to substantial loss; the applicant must show the execution will irreparably affect the essential core of its position

Court orders

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  1. 1.Limited stay of execution granted
  2. 2.Applicant directed to pay the decretal sum in 3 equal instalments with effect from 30th May 2025 and every 30th of each succeeding month until payment in full
  3. 3.In default of payment, execution to issue
Jurisdiction invoked
Articles 48 and 50(1) of the Constitution of Kenya; Rule 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016; Order 21 Rule 12, Order 22 Rule 22 and Order 51 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, "Chogo v Kamongo Waste Paper Kenya Limited (Employment and Labour Relations Petition E103 of 2023) [2025] KEELRC 1186 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1186/eng@2025-04-28

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