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ELRCDismissedNot stated in the judgment extract

Anastasia Ndileve Masoa v DM Enterprises Limited [2021] KEELRC 1406 (KLR)

Employment and Labour Relations Court
13 April 2021
MMM. Mbaru
972 words in judgment
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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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DM Enterprises Limited, the respondent in a suit in which judgment had been entered against it on 14th May, 2019, filed a notice of motion dated 22nd February, 2021 seeking stay of execution of the decree and leave to liquidate the decretal sum in 8 equal instalments. It argued that its former advocates had failed to inform it of the judgment and it only became aware when auctioneers proclaimed its assets; that two attached vehicles did not belong to it, being charged to I & M Bank and Prime Bank; and that attachment of business assets would cause irreparable loss. It expressed no intention to appeal. The claimant, through the replying affidavit of Isaiah Kubai, opposed the application, contending the respondent was served throughout the proceedings, that the application was an abuse of process aimed at denying the claimant the fruits of judgment, and that the instalment offer was insincere since a cheque of Ksh.40,000 had been forwarded on 5th March, 2021, translating to 16 instalments rather than the proposed 8. The court applied Order 21 rule 12 of the Civil Procedure Rules, setting out three conditions: sufficient reason, good faith with reasonable instalments, and bona fides in arranging fair payments. It held that ignorance of the judgment by former advocates, with no intended appeal, was not sufficient reason to stall execution of a valid judgment, and that the offer was not bona fide given the decretal sum of Ksh.503,686 before taxation. The application was dismissed with costs to the claimant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent has shown sufficient reason why it should pay the decretal sum in instalments
  2. 2.Whether the application was made in good faith and the proposed monthly instalments are reasonable
  3. 3.Whether the applicant has shown bona fides by arranging fair payments in instalments
  4. 4.Whether stay of execution should be granted

Key legal issues

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01

Whether the respondent established sufficient reason for stay of execution and payment in instalments

Holding

The application failed the three conditions for instalment payments; not being informed of the judgment by former advocates and not wishing to appeal is not sufficient reason to stall execution of a valid judgment.

Reasoning

The court set out three conditions from Order 21 rule 12: sufficient reason, good faith and reasonable instalments, and bona fides in arranging fair payments. The respondent gave no details justifying 8 instalments, made no actual payment matching the offer, and was aware of the judgment when delivered. The claimant was entitled to enjoy the fruits of a valid judgment.

p. 2
02

Whether the instalment offer was made in good faith and bona fides

Holding

The offer was not bona fide; the respondent had only paid Ksh.40,000, translating to 16 instalments rather than the proposed 8, amounting to an abuse of the orders sought and of court process.

Reasoning

The decretal sum before taxation was Ksh.503,686, meaning 8 instalments would be about Ksh.62,960.75 each, higher with costs. The cheque of Ksh.40,000 contradicted the offer, showing the proposal was insincere. The claimant also pointed to the absence of financial statements demonstrating inability to pay the whole sum at once.

p. 2

Legal principles established

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  • Payment of decretal sums in instalments is discretionary and requires the applicant to show sufficient reason, good faith with reasonable instalments, and bona fides by arranging fair payments.

Court orders

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  1. 1.Application dated 22nd February, 2021 dismissed
  2. 2.Costs of the application awarded to the claimant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MM
majority

Wrote the judgment

Jurisdiction invoked
Original Employment and Labour Relations Court jurisdiction over post-judgment stay of execution; Order 21 rule 12 Civil Procedure Rules

Relief refused

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Stay of execution of the decree passed on 14th May, 2019

Non-service of the judgment by former advocates and lack of intention to appeal is not sufficient reason to stall execution; the offer to pay in instalments was not bona fide

p. 2

Leave to liquidate the decretal sum in 8 equal instalments

The offer was not actualised; the cheque of Ksh.40,000 would translate to 16 instalments and was a negation of the offer and an abuse of the orders sought

p. 2

Costs

Application dismissed with costs to the claimant.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Payment of decretal sums in instalments is based on the courts discretion upon circumstances of the applicant and Order 21 rule 12 Civil Procedure Rules allows the court to order instalment Payments with or without consent of the decree holder.
p. 2Discretion to order instalment payments
There is a valid judgement on record. The claimant should not be denied the enjoyment of the fruits of the same for the sole reason that the respondent was not informed of the judgement by his advocates in good time and now does not wish to file an appeal.
p. 2Fruits of judgment; insufficient reason for stay
Accordingly, application dated 22nd February, 2021 is found without merit and in abuse of court process and is hereby dismissed with costs to the claimant.
p. 2Final orders - dismissal of the application

Issues in the judgment

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minor

The name of the claimant is not stated in the judgment; parties are referred to only as 'the claimant' and 'the respondent'.

minor

The case number of the suit and the application number are not stated in the judgment.

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, "Anastasia Ndileve Masoa v DM Enterprises Limited [2021] KEELRC 1406 (KLR)", Case Analysis (2021). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1406/eng@2021-04-13

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