[2002] KEHC 527 (KLR)
The court found that the defendants failed to demonstrate good faith or provide sufficient evidence of their current financial position to justify payment of the decretal sum by instalments. The court noted that no instalments had been paid since the agreement, the cheques issued were dishonoured, and the reasons...
Source-derived case information.
- Citation
- [2002] KEHC 527 (KLR)
- Parties
- Plaintiff: Abdul Alim Musa Ayub; Defendant: Amani K.A. Ruto; Defendant: Salim Ruto t/a Hasabi Foodstuffs Suppliers
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 5631 of 2000
- Procedural Posture
- Civil Suit / Ruling on Application for Payment of Decretal Sum by Instalments
- Outcome
- application dismissed with costs
- Legal Topics
- Execution of Decree, Instalment Payment, Good Faith in Execution, Delay of Judgment, Discretion of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdul Alim Musa Ayub
Plaintiff
Amani K.A. Ruto
Defendant
Salim Ruto t/a Hasabi Foodstuffs Suppliers
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Payment of Decretal Sum by Instalments
Legal Issues
- 1 Whether the defendants have shown sufficient reason to be allowed to pay the decretal sum by monthly instalments.
- 2 Whether the defendants have demonstrated good faith in seeking to pay the judgment debt by instalments.
- 3 Whether the interests of the decree-holder outweigh the reasons advanced by the defendants for delay.
Ratio Decidendi
The court found that the defendants failed to demonstrate good faith or provide sufficient evidence of their current financial position to justify payment of the decretal sum by instalments. The court noted that no instalments had been paid since the agreement, the cheques issued were dishonoured, and the reasons advanced (illness and business downturn) were not supported by recent evidence. The court emphasized the right of the decree-holder to enjoy the fruits of judgment without undue delay and held that the interests of the decree-holder outweighed the unsubstantiated claims of hardship by the defendants. Consequently, the application to pay by instalments was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application to pay the decretal sum by monthly instalments is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CIVIL SUIT NO. 5631 OF 2000
ABDUL ALIM MUSA AYUB ……………………………….. PLAINTIFF
V E R S U S
1. AMANI K.A. RUTO ……………………………......DEFENDANTS
2. SALIM RUTO T/A....................................................DEFENDANTS
HASABI FOODSTUFFS SUPPLIERS
R U L I N G
Defendant/decree debtors have applied under Order XX rule 11 and 20 and Section 3A for an order to allow them to liquidate decretal amount shs. 680,000/- by monthly instalments of shs. 50. 000/- each. The record shows that on 20. 12. 2000 the defendant admitted the debt and offered to pay by monthly instalments of shs. 30,000/- each. In the statement of claim dated 15. 11. 2000 shows that there was an agreement from the beginning of the contract for payment of the amount by monthly instalment of 100,000/-.
The decree-holder swears that no instalment has ever been paid since the date of agreement and that the cheques given initially were all unpaid upon representation to the bank.
The reasons why the decree debtors are unable to pay full amount is stated as illness of 2nd defendant who has been sick since February 2000 and, his the hospitalization has taken a lot of money from the business and the resources of the first defendant are all going to meet the cost of medical treatment. It is also said that the business is not doing well because of the country wide economic slump. I have perused supporting affidavit and annextures thereto and it is evident that the expenditure on medical treatment of 2nd defendant were all during the year 2000. And that this application was only made in May this year (2002). No payment of instalments has been offered to show good faith on the part of the decree debtors. There is no information supplied as to the financial position of the business now. The case of Ayub Salyani & others –vs- Sherali Haji Saleh & another HCC. No. 375 of 1997 (Hon. J. Waki) wherein previous authorities on the issue are reviewed is cited. I am of the view that the applicants have not shown any good faith in this matter and have caused delay to the plaintiff who is entitled to the fruits of judgment without so much delay. The interests of the decree-holder also matter and particularly in this case where the decree debtors obtained the vehicle of decree /holder without any payment.
In the circumstances l do not see any sufficient reason to allow the application which is hereby dismissed with costs.
Dated this 24th day of June 2002.
J. KHAMINWA
COMMISSIONER OF ASSIZE
Mr. Kariuki and Mr. Chigiti present