Felister Nduku Nzaku v Joyce Wairimu Gitau & GSI Kenya Limited [2019] KEELRC 66 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO. 1126 OF 2016

FELISTER NDUKU NZAKU.....................................CLAIMANT

-VERSUS-

JOYCE WAIRIMU GITAU............................1ST RESPONDENT

GSI KENYA LIMITED..................................2ND RESPONDENT

RULING

1. The application before the court is the respondent’s Application dated 29. 4.2019.  It is brought under Rule 17(1), (2), (3) & 8 of the ELRC (procedure) Rules 2016 and section 3(1) & (2) of the ELRC Act and it seeks the following orders:-

(a)  This application be certified urgent and service thereof be dispensed with in the instant.

(b) The Warrant of Arrest issued on 29. 04. 2019 by this Honourable Court (Hon Daisy Mutai DR,) be and is hereby set aside.

(c) The execution of the decree issued on 31. 07. 2018 be and is hereby stayed up to Friday, 03. 05. 2019, pending filing, by the Respondent/Applicant, of a further and substantive application for stay of the Decree issued on 31. 07. 2018 and review of the judgement issued by this Honourable Court on 31. 07. 2018.

(d) The Respondent/Applicant be and is hereby issued with copies of pleadings, correspondence, proceedings, judgements, rulings, decrees and orders issued in this matter.

(e) The claimant/Respondent be restrained from harassing the Respondent/Applicant in the name of executing the Decree issued on 31. 07. 2018 or otherwise.

(f) Costs of this application be to the Respondent/Applicant.

2. The main grounds upon which the application stands is that she was served with a Notice to Show Cause why she should not be committed to Civil jail in execution of the decree of the court and she did appear through her lawyer because of her impaired mobility due to a series of operations.  However, the Deputy Registrar issued a warrant of arrest against her despite her counsel’s explanation that she was not even aware of the judgment until she was served with the show cause letter.  In addition, she contends that there is no evidence that the claimant has deposited money in court for subsistence during the civil jail term.  She further contends that she has not refused to comply with any orders or directions of the court.

3. The claimant has opposed the application by her Replying  Affidavit sworn on 28. 5.2019.  In brief, she contends that the application is made in bad faith and it is meant to delay justice.  She further contends that the applicant has always resisted service and this is not the first application to stop execution since she filed a similar application on 14. 6.2017.  She therefore prayed that the applicant be ordered to deposit the decreed sum in court or else the application be dismissed with costs.

4. The main issue for determination in my view is whether the application before the court, has merits.

Analysis and determination

5. To answer the said question, a brief background of the suit is in order.  The suit was filed on 10. 6.2016 by the claimant in person.  Thereafter the respondent was served with summons to appear in court but she defaulted.  As a result, the suit proceeded exparte and a judgment was entered against her by Mbaru J on 15. 12. 2016 and execution commenced through warrants of Attachment.  However she filed a Notice of Motion on 2. 8.2017 seeking for stay of execution and setting aside of the said judgment.  After hearing, the parties Mbaru J set aside the judgement by a ruling read out 31. 10. 2017 in which she directed the respondent to file defence and pay the claimant thrown away costs of Ksh.20,000.

6. The respondent paid the thrown away costs out of time and failed to file defence and on 25. 1.2018 the court fixed the suit for fresh hearing on 4. 6.2018.  The respondent’s counsel was served with a hearing notice and indeed he attended court.  However, the counsel had not yet filed defence and the suit proceeded without the respondent’s defence or evidence and I rendered judgment on 31. 7.2018 in favour of the claimant.

7. The respondent was further served with a party and party bill of costs and a Taxation notice but again failed to oppose the bill.  After the costs were determined, execution was again done by issuance of warrant of attachment to Icon Auctioneers on 5. 12. 2018.  However the auctioneers returned the warrants on 12. 3.2019 stating that they could not trace any attachable Assets belonging to the respondent and advised for change of the mode of execution.  As a result, Notice to Show Cause was issued against the respondent on 29. 3.2019 requiring her to attend court to show cause why she should not be committed to civil jail in execution of the decree.  The notice permitted her to pay the decreed sum of Kshs.410,379 if she wished to avoid attending court on the stated date being 29. 4.2019.

8. The respondent did not pay but sent her counsel to appear in court on 29. 4.2019.  The  Deputy Registrar was not satisfied with the explanation given by respondent’s counsel and she issued a warrant of arrest against the Respondent.  The counsel sought stay of the said warrants and it was denied.  He therefore brought the instant motion.

9. In view of the foregoing background, it is clear that there is no appeal pending or the substantive application for review of the judgement delivered on 31. 7.2018.  In fact prayer two in the motion is that stay be issued upto Friday 3. 5.2019 pending filing of a substantive application for stay and review  of the said judgement.  It follows therefore that the motion before me was intended to be on the interim basis until 3. 5.2019 and as such, the same is now overtaken by events.

10. In addition it has to been shown why the warrant of arrest issued by the Deputy Registrar should be set aside.  The applicant had the option to pay the decreed sum stated in the Notice to show cause but she defaulted.  The decree is still in force and it has not been challenged in any manner.  Prayer 1 of the application is therefore without merits.  The foregoing view is fortified by the fact that the applicant did not file any defence to oppose the claim.

11. Prayer 4 is also dismissed since the applicant has not shown that the documents sought were declined.  The court file has always been available in  the court registry, in open court and also before the Deputy Registry and the applicant never requisited for the said documents.  I therefore direct her to use the administrative procedures laid down and especially in the service charter to obtain the said documents.

12. Prayer 5 is also dismissed because it has not been shown how the claimant is harassing the applicant through execution of the decree of the court.  The mode execution adopted is not one which can be done by the claimant in person.

13. In the end, I find no merit in the application dated 29. 4.2019 and I proceed to dismiss it with costs.

Dated, Signed and Delivered in Open Court at Nairobithis 20th day of December,  2019

ONESMUS N. MAKAU

JUDGE