[2017] KEHC 9143 (KLR)
The court found that while the defendant/applicant demonstrated some bona fides by making payments and expressing willingness to settle the decretal sum, the proposed monthly instalment of Kshs. 100,000/= was too low given the substantial amount of the decree and the time elapsed since judgment. Exercising its...
Source-derived case information.
- Citation
- [2017] KEHC 9143 (KLR)
- Parties
- Plaintiff: A Z Shah T/A Fashion Spot; Defendant: Janmohamed Investment Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 513 of 2012
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution and Payment by Instalments
- Outcome
- Application partly allowed with conditions.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Payment by Instalments, Discretionary Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
A Z Shah T/A Fashion Spot
Plaintiff
Janmohamed Investment Ltd
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution and Payment by Instalments
Legal Issues
- 1 Whether the defendant is entitled to a stay of execution of the decree dated 3rd December, 2015.
- 2 Whether the court should grant leave to the defendant to liquidate the decretal sum by monthly instalments of Kshs. 100,000/=.
- 3 What is the appropriate amount for monthly instalments, if any, in the circumstances.
Ratio Decidendi
The court found that while the defendant/applicant demonstrated some bona fides by making payments and expressing willingness to settle the decretal sum, the proposed monthly instalment of Kshs. 100,000/= was too low given the substantial amount of the decree and the time elapsed since judgment. Exercising its discretion, the court granted a stay of execution on condition that the defendant enhances the monthly instalments to Kshs. 300,000/=, effective from 30th September, 2017. Failure to pay any instalment would result in execution. The court balanced the interests of both parties, ensuring the plaintiff's right to the fruits of judgment while accommodating the defendant's financial...
Court Disposition
Application partly allowed with conditions.
Orders
- Stay of execution granted on condition that the defendant pays monthly instalments of Kshs. 300,000/= starting 30th September, 2017.
- In default of any instalment, execution shall follow.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
AT NAIROBI
CIVIL CASE NO. 513 OF 2012
A Z SHAH T/A FASHION SPOT ……...PLAINITFF
VERSUS
JANMOHAMED INVESTMENT LTD .. DEFENDANT
RULING
By an application dated 27th April, 2017 the defendant/ applicant sought two substantive orders. There was a prayer for stay of execution of the court’s decree dated 3rd December, 2015 and another for leave to liquidate the decree by monthly instalments of Kshs. 100,000/= until payment in full.
The application is premised on Order 21 Rule 12, Order 22 Rule 22 and Order 51 Rule 1 of the Civil Procedure Rules. The applicant has also cited Section 3A of the Civil Procedure Act. The grounds are set out on the face of the application and there is a supporting affidavit sworn by Karim Janmohamed one of the Directors of the defendant/ applicant.
The decree in favour of the plaintiff/respondent is in the sum of Kshs. 1,518,362. 10. The application is opposed and there are grounds of opposition filed on behalf of the plaintiff. The thrust of the applicant’s case is that it is undergoing genuine financial constraints and any negotiations to reach an amicable settlement have completely failed leading to a threat of execution.
The application is said to have been made in good faith and the applicant is ready to comply with any orders imposed by the court. The applicant has all along been ready to settle the decretal sum and through reasonable instalments of Kshs. 100,000/=. On the other hand, the plaintiff states that the application is frivolous, incompetent, misconceived and devoid of any merit. If anything, it is tantamount to abuse of court process. It is also stated that the grounds advanced are not sufficient for granting the orders of stay of execution.
Several authorities have been cited. In the case of Zlatko Rostocil Vs. James Samuel Kinyanjui [2013] e KLR the court citing other cases in relation to similar applications stated that, the primary consideration for postponing payment of a decree by instalments is for the judgment debtor to demonstrate bona fides by payment of a fair proportion of the date.
The orders sought are discretionary but at the same time, the court has to consider and appreciate that the plaintiff holds a judgment in his favour against the defendant. The amount of the decree is substantial and a lot of time has gone by since the issuance of the decree.
The defendant applicant has made some payments to the plaintiff which were accepted without prejudice. At some point there was a prayer that the deponent of the supporting affidavit be summoned for cross-examination; this however was not pursued.
I have considered the positions of both parties, the obtaining facts and circumstances. I am persuaded that justice must look at both sides but the proposal advanced by the defendant applicant is too low. I find and hold that there shall be a stay of execution provided that the defendant applicant enhances the proposed monthly instalments to Ksh. 300,000/= with effect from 30th September, 2017.
In default of any instalment thereafter, execution shall follow. Each party shall bear their own costs of this application.
Dated, signed and delivered at Nairobi this 27th Day of July, 2017
A. MBOGHOLI MSAGHA
JUDGE