https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/289

Alex & 15 others v Ndegwa (Tribunal Case E862 of 2024) [2026] KECOPT 289 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KECOPT 289 (KLR) Republic of Kenya In the Cooperative Tribunal Tribunal Case E862 of 2024 J Mwatsama, Chair, B Sawe, F Lotuiya, M Chesikaw & PO Aol, Members July 9, 2026 Between Geoffrey Nyatia Alex 1st Claimant John Kibet Mosonik 2nd Claimant Nobert K. Togom 3rd Claimant Luke Ngenye 4th Claimant Rhodah Kisenya 5th Claimant Godfrey Omondi Alindi 6th Claimant Christine Nyokabi Njuguna 7th Claimant Ruthie Kemunto 8th Claimant Francis Ngugi 9th Claimant Maria Wanjiku Njaggah 10th Claimant Raymond Byron Okoth 11th Claimant Christopher Muruthi Wachira 12th Claimant Brian Hobson Munialo 13th Claimant Dennis Obare Mokaya 14th Claimant Carolyn Kiget 15th Claimant Diero Ochola Thomas 16th Claimant and Edmuno Muturi Ndegwa Respondent Ruling Background Facts 1.Before this Tribunal for determination is the Respondent’s Notice of Motion Application dated 23rd April 2025 filed under Certificate of Urgency seeking for the following orders:i.Spentii.That pending hearing and determination of this Application inter-parties, there be a stay of execution of judgement and decree dated 19th February 2026 and the warrants of attachment dated 29th April 2026.iii.That pending the hearing and determination of the application, an order be issued that the decretal sum arising from the decree dated 19th February 2026 be liquidated by way of monthly instalment of Ksh.80,000/= with an initial deposit of Ksh.100,000/= until payment in full. 2.The Application is brought pursuant to Section 3A of the Civil Procedure Act, Order 21 Rule 12 of the Civil Procedure Rules, 2010, Section 78(2) of the Cooperative Societies Act, Article 159 of the Constitution of Kenya 2010 and all other enabling provisions of the law. 3.The Application is premised on eight (8) grounds among them being that the Respondent is apprehensive that the Claimants/Respondents will proceed to execute the Warrant of Attachment dated 17th April 2026 for recovery of a decretal sum of Ksh.2,966,115.51. That due to some unforeseen financial constraints he is unable to liquidate the amount once and instead he is willing to pay by way of monthly instalments of Ksh.80,000/= with initial deposit of Ksh.100,000/=. 4.Through a Replying Affidavit sworn by Rhoda Tete Kisenya, the Claimants opposed the Respondent’s Application as an afterthought when all along the Respondent slept on his rights to defend the suit. The Claimants further opposed the Respondents proposal of the monthly payment of Ksh.80,000/= with an initial payment of Ksh.100,000/= and made a counter proposal that the Respondent should pay 50% of the decretal sum within 14 days and the balance of 50% to be paid monthly at a rate that the parties will negotiate and agree. 5.That the Respondent was well aware of his indebtedness to the Sacco but failed to address the default until the Sacco recovered their money from the Claimants as his guarantors. It would therefore be inequitable and prejudicial to them if the Tribunal grants a stay of the execution. Analysis 6.We have read and analysed the Claimants Statement of Claim, the Witness Statement of Rhoda Kisenya, the filed annexures and the Affidavit of Service sworn by Jack Abila Bwire a court process server. We have further noted that the Respondent did not file a Defence and the Claimants applied for judgement to be entered against the Respondent.We have further analysed the grounds which the Respondent argued out to support his quest to have a stay of execution of the judgement and the decree.Having considered the Claimants and the Respondents averments we isolate two issues for determination.i.Whether a stay of execution is appropriate for the instant case?ii.Who should bear the cost of the Application? Determination i. Whether a Stay of Execution is Appropriate for the Instant Case? 7.The governing law that provide guidance on Applications for a Stay of Execution of a judgement and a decree pending instalment payment of the decretal sum is Order 21 Rule 12(2) of the Civil Procedure Rules which provides as follows:“After passing of decree, the court may on the Application of the Judgment Debtor and with the consent of the Decree- Holder or without consent of the Decree-Holder for sufficient cause shown, order that the payment of the amount decreed be postponed or be made by instalments on such terms as to the payment of interest, the attachment of the property of the Judgment Debtor or the taking of security from him, or otherwise as it thinks fit.”In A. Rajabali Alidina v Remtulla Alidina & Anor. (1961) EA 565, Law JA stated: -“All commentators on the Civil Procedure Code agree that the court’s discretion to order payment of the decretal amount in instalments is one which must be exercised in a judicial and not an arbitrary manner. The onus is on the defendant to show that he is entitled to indulgence under this rule.” 8.The Respondent in the instant suit filed the Notice of Motion and prayed that a Stay of Execution be granted and proposed to pay the decretal sum by monthly instalments of Ksh.8,0000/= with an initial deposit of Ksh.100,000/= which is opposed by the Claimants. However, upon a re- read of the Respondents grounds for the stay we did not come across any sufficient cause or special circumstance that makes him not to pay the entire decretal amount at once. On this, the Tribunal places reliance in the case of Keshavji Jethbhai & Bros Limited –vs- Saleh Abdalla [1959] EA 260 where the court held:“…it is laid down that the mere fact that the debtor is heard pressed or unable to pay in full at once is not sufficient reason for granting instalments and that ordinarily should be required to show his bonafides by arguing prompt payments of a fair proportion of the debt…. prompt payment of a fair proportion of the debt is a condition precedent for the granting of the discretion of granting instalments. Each case has to be decided on its own merit, the predominant fact being of course the bonafides of a debtor.” 9.The Respondent filed a Further Affidavit dated 4th May 2026 with an attachment of his payslip but he failed to pay the court filling fees as shown in the Tribunal portal. The Tribunal will therefore not consider the stated Affidavit as forming part of the evidence of the Respondent. Under the circumstance we consider that the Respondent has not disclosed his financial status to the Tribunal and did not demonstrate that he can not pay the entire decretal sum at once. 10.The court in the case of Diamond Star General Forwarding Ltd -vs- Ambrose D O Rachier (2018) eKLR had this to say:“That my view is an Applicant who wishes a court to exercise its discretion and order paymentt of a decretal sum by way of instalments must be very candid with the court. Such an Applicant must present to the court sufficient material to show that he/she is a person of no means, that whatever income she or he has is lawfully committed elsewhere. He or she must disclose to the court all his/her means and explain to the court why the proposed instalments are the best option available. Accordingly, the burden is on the applicant to prove/show that he/she deserves the orders sought”. 11.On providing sufficient cause, it is the tribunals finding that the respondent has not established that he deserves to pay the decretal sum according to his proposal. 12.In the case of Lavington Security Limited, Hildegard Ndelut -Vs- Letkina Dairies Ltd & Another the court stated that;“A Judgment Creditor is entitled to payment of the decretal amount, which he should receive promptly to reap the fruits of the judgment. The Judgment Debtor might genuinely be in a difficult position in paying the decretal amount at once. However, he has to show seriousness in paying the amount. In that event he should show his bona fides by arranging fair payment proposals to liquidate the amount.” 13.Guided by the above principle, we however note that the Claimants agreed that the Respondent may pay the decretal sum by instalments but on condition that he pays 50% lumpsum within 14 days and the balance to be paid by equal instalment to be agreed between the parties. In our view the Claimants’ proposal is tantamount to consenting to the stay of the execution. 14.Consequently, acting on the powers granted to the Tribunal under Rule 4 of the Cooperative Tribunal (Practice and Procedure) 2009 that state;“The Tribunal shall have power and discretion to decide all matters before it with due speed and dispatch without regard to technicalities of procedure”. 15.The upshot of the foregoing is that, we order for a Stay of Execution of the judgement dated 6/11/2025 the decree dated 19/2/2026 and the Warrants of Attachment dated 17th April 2026 on the following conditions:a.The Respondent is hereby ordered to pay the Claimant Kshs. 872,000 14 days from date of this ruling.b.The Respondent is to pay Kshs. 170,000 on or before 5th August 2026 and each subsequent month thereafter until payment is done in full.c.In default the decree dated 19/2/2026 and Warrants are revived.d.Costs of the Application to be borne by the Respondent. RULING DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 9TH DAY OF JULY, 2026.HON. J. MWATSAMA CHAIRPERSONHON. B. SAWE MEMBERHON. FRIDAH LOTUIYA MEMBERHON. M. CHESIKAW MEMBERHON. P. AOL MEMBERCourt Assistant – Mutai