Felister Nduku Nzaku v Joyce Wairimu Gitau [2020] KEELRC 821 (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.......RESPONDENT

RULING

1. The application before me is the Notice of  Motion dated 4. 2.2020 brought by the claimant/ decree holder.  It is brought under section 3A of the Civil Procedure Act and Rule 16 of the Industrial Court Procedure Rules 2010 and seeks the following:

a. Breaking Order be issued to the OCS Riruta Police Station to access the respondent’s house for purposes of arresting her as per court warrants in  this case.

b. Costs be in the cause.

2. The application is premised on the grounds set out on the  body of the motion and the supporting affidavit sworn by the claimant on 4. 2.2020. In brief the claimant contends that a warrant of arrest has been issued against the respondent  in execution of  the decree passed by the court but the respondent has refused to open the  house thereby  preventing the police from carrying out a lawful duty. It is therefore her  case that there is no other option left other than breaking the door to the respondent’s house.

3. The respondent did not respond to the application but her counsel requested for 21 days to negotiate settlement.  Alter the 21 days lapsed  no settlement had been reached and nothing had been filed to oppose the application.  However, when the application came up for hearing on 12. 3.2020 the counsel opposed the application on grounds of law.  In brief, he contended the application has not complied with section 38(b) of the Civil Procedure Act because the respondent is not a flight risk and has not refused to pay the decretal sum.  He further contended that the reason for not paying the decretal sum is poverty and illness, which are valid reasons for justifying cancellation of the warrant of arrest under section 43 of the Act.

4. The applicant has however disputed the respondent’s alleged sickness and poverty  and averred that the respondent is a woman of means.  She contended that she worked for the respondent for years and  she is aware that the respondent is a land lady at Satellite area of Dagorreti South.  She further contended that some of the respondent’s children live abroad including the children she was taking care of during her service to the respondent.

5. I have carefully considered the application, supporting affidavit and the oral submission made by both parties.  There is no dispute that the claimant obtained a money decree from the court against the respondent on 31. 7.2018.  There is  no appeal is pending to impugn  the said decree. There is also neither application for review challenging the decree nor is there an order staying execution of the same.  The issues for determination are:-

a. Whether the application violates section 38(b) and 43 of the Civil Procedure Act.

b. Whether the application has merits and should be allowed.

Violation of section 38 (b)  and 43 of the CPA

6. Section 38 of the Act permits execution of decree by arrest and detention of the judgment debtor.  The section however bars such method of execution unless the judgment debtor is first given an opportunity of showing cause why he should not be committed to prison and the court is satisfied that:-

“(b) That the judgment debtor has or has had since the date of the decree, the means to pay the amount of the decree or  some substantial part thereof, or has refused or neglected to  pay the same.”

7. Section 43 of the Act on the other hand provides that at any time after a warrant of the arrest of a judgment debtor has been issued, the  court, may cancel it on the ground of his serious illness.  It was alleged from the bar that the respondent has been prevented frompaying the decree sum due to illness and poverty.  No evidence in the form of Affidavit was tendered to this court by the respondent in her favour.  It is therefore not possible for this court to exercise any discretion.

8. The respondent has also not rebutted the contention by the claimant that she is a woman of means being a Land Lady in Dagorreti South where she receives rental income.  It follows therefore that from the date of the court decree herein, she had the means  but has deliberately failed to pay either the whole judgment debt or a substantial part thereof.  She has also not challenged the decree by either appeal or review has also not applied for cancellation of the warrants of arrest.  I therefore find that the application herein does not violate the  provisions of sections 38(b) and 43 of the Civil Procedure Act.

Merits

9. In view of the foregoing finding and the fact that the decree and the warrants of arrest herein have not been impugned, I find that the application  has merit and proceed to allow it as prayed. However due to the Covid-19 pandemic, I stay the breaking order for 30 days, on condition that the respondent shall pay to the claimant Kshs. 150,000. 00 within the said 30 days from the date hereof.  In default by the respondent to pay the said sum, the stay order shall lapse automatically and the breaking order granted shall be executed.

Costs of the application to the claimant.

Dated,signed and delivered in Nairobi this 26th day of June 2020.

ONESMUS N. MAKAU

JUDGE