Aganda Wycliffe v Abraham Nganai Kiprotich [2021] KECPT 580 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.474 OF 2016

AGANDA WYCLIFFE..........................................................CLAIMANT

VERSUS

ABRAHAM NGANAI KIPROTICH.............................RESPONDENT

RULING

Vide the Application dated 2. 3.2020, the Respondent has moved this Tribunal seeking for Orders inter alia:

a. That this Application be certified urgent, its service dispensed with and the same be heard on priority basis at the first instance;

b. That there be a stay of execution of the warrants of arrest issued on 12th February 2020 pending interparty hearing and determination of this Application;

c. That the warrants of arrest issued on 12. 2.2020 be set aside; and

d. Costs of the Application be awarded to the Applicant.

The Application is supported by the grounds on its face and the Affidavit sworn by himself on 2. 3.2020. It is also supported by the Supplementary Affidavit sworn by himself on 24. 8.2020. The Decree Holder  has opposed the Application by filing a Replying Affidavit sworn by himself on 6. 10. 2020.

Vide the directions given on 27. 7.2020, the Application was canvassed by way of written submissions. The Judgment Debtor filed its submissions dated 24. 8.2020 while the Decree Holder did so on 6. 10. 2020.

Judgment Debtor’s Contention

Vide the instant Application, the Judgment Debtor seeks for the warrant of arrest issued on 12. 2.2020 to be set aside on account of the fact that the Decree Holder obtained the said warrant of arrest without Notice to him.

That after the Decree Holder obtained Judgment for Kshs.165,928/= he entered into agreement with him for him to defray the same by way of monthly installments of Kshs.10,000/=.

That he settled the decretal amount as agreed and as at August, 2019, he had paid a total of Kshs.50,000/= leaving a balance of Kshs.118,926/= due and owing.

That he only defaulted for the months of January and February, 2020 due to an outstanding medical Bill. That his financial challenge was further aggravated by the fact that his salary is being deducted to reimburse the employer for the days he was out of employment.

That the matter was scheduled for mention to confirm compliance 11. 2.2020 but this date was declared a public holiday.

Decree Holder’s Case

Vide his Replying Affidavit sworn on 6. 10. 2020, the Decree Holder conceded that he had entered into a consent with the Judgment Debtor for him to settle the decretal amount by way of monthly installments of Kshs.10,000/= but accuse the Judgment Debtor of reneging on the said Agreement. That by deciding to act in person, the Judgment Debtor is merely employing tactics to avoid execution. That the Judgment Debtor has not even made a proposal on payment of balance of the decretal amount.,

Issues for determination

We have framed the following issues for determination:

a. Whether the warrant of arrest issued on 12. 2.2020 should be set aside;

b. What Orders are available in the circumstances setting aside of the warrant of arrest?

We have perused the proceedings of 4. 12. 19. It is apparent that this matter was listed for mention to confirm payment of decretal amount. Unfortunately, this date was declared a public holiday. The matter then came up the following day, that is 12. 2.2020 where we issued the warrant of arrest.

We have considered the judgment Debtor’s arguments as regards the warrant of arrest. It is true that he was not aware of proceedings of 12. 2.2020.

Secondly, we have heard him as regards his inability to pay the decretal amount in full. We have particularly perused annextures AKN2 of the annextures attached to his supporting affidavit sworn on 2. 3.2021. We confirm that indeed the Judgment Debtor felt ill and was admitted at the Moi Teaching and Referral Hospital on 14. 6.19. We have also perused the invoice from the hospital and note that his bill was in the region of Kshs.623,000/=.

We have also perused annexture AKN3. It is a letter from his employer Metropol Limited informing him about the impending deduction to recover excess leave days.

What we deduce from the foregoing is that the Judgment Debtor has not willingly refused and/or declined to settle the decretal amount. He fell ill and got admitted in hospital. On this basis alone, we are constrained to lift the warrant of arrest issued on 12. 2.2020.

Conclusion

The upshot of the foregoing is that we find merit in the Judgment Debtor’s Application dated 2. 3.2020 and allow it on terms that the warrant of arrest issued on 12. 2.2020 is hereby set aside. Further, we direct the Judgment Debtor to settle the decretal amount in the manner agreed upon between him and the Claimant. Should the Judgment Debtor fail to do so, then the Decree Holder is at liberty to apply.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 4TH DAY OF MARCH, 2021.

Hon. B. Kimemia  Chairperson  Signed 4. 3.2021

Hon. J. Mwatsama Deputy Chairperson Signed 4. 3.2021

B. Akusala   Member  Signed 4. 3.2021

No appearance for the parties

Hon. B. Kimemia  Chairperson Signed 4. 3.2021