[2019] KEHC 3815 (KLR)
The court found that the applicant failed to provide any evidence or reasons justifying payment of the taxed costs by monthly instalments. The applicant did not disclose his financial status or demonstrate any hardship. The court considered that the respondents had already waited a year for payment and were willing...
Source-derived case information.
- Citation
- [2019] KEHC 3815 (KLR)
- Parties
- Applicant: Andrew Toboso Anyanga; Respondent: Mwale Nicholas Scott Tindi; Respondent: Habil Najendo Bushuru; Respondent: Returning Officer (Butere Constituency); Respondent: The Independent Electoral & Boundaries Commission
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Election Petition 12 of 2017
- Procedural Posture
- Election Petition / Ruling on Application for Payment of Costs by Instalments
- Outcome
- application dismissed in part; payment by two equal instalments ordered
- Judges
- CM Njagi
- Legal Topics
- Costs Taxation, Instalment Payments, Execution of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Toboso Anyanga
Applicant
Mwale Nicholas Scott Tindi
Respondent
Habil Najendo Bushuru
Respondent
Returning Officer (Butere Constituency)
Respondent
The Independent Electoral & Boundaries Commission
Respondent
Procedural Posture
Election Petition / Ruling on Application for Payment of Costs by Instalments
Legal Issues
- 1 Whether the applicant should be allowed to pay the taxed costs in monthly instalments of Ksh. 50,000/=.
- 2 Whether the respondents' proposal for payment in two equal instalments is reasonable.
Ratio Decidendi
The court found that the applicant failed to provide any evidence or reasons justifying payment of the taxed costs by monthly instalments. The applicant did not disclose his financial status or demonstrate any hardship. The court considered that the respondents had already waited a year for payment and were willing to accept two equal instalments. The court exercised its discretion to order payment in two equal instalments, finding the applicant's proposal unreasonable and the respondents' proposal fair under the circumstances. The court further ordered that execution may proceed if the applicant defaults on any instalment.
Court Disposition
application dismissed in part; payment by two equal instalments ordered
Orders
- The applicant shall pay the sum of Ksh. 749,719 in two equal instalments of Ksh. 374,859.50 each.
- The first instalment is due on or before 10/11/2019 and the second on or before 10/12/2019.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
ELECTION PETITION NO. 12 OF 2017
ANDREW TOBOSO ANYANGA..........................................PETITIONER/APPLICANT
VERSUS
MWALE NICHOLAS SCOTT TINDI .................................................1ST RESPONDENT
HABIL NAJENDO BUSHURU ...........................................................2ND RESPONDENT
RETURNING OFFICER (BUTERE CONSTITUENCY) ................3RD RESPONDENT
THE INDEPENDENT ELECTORAL & .
BOUNDARIES COMMISSION ..........................................................4TH RESPONDENT
RULING
1. The petitioner/applicant has filed a notice of motion dated 23/10/2019 seeking that he be allowed to defray the cost of the suit owing to the 3rd and 4th respondents of Ksh. 749,719/= in monthly instalments of Ksh. 50,000/=. The same was supported by the affidavit of the applicant.
2. The application was opposed by the 3rd and 4th respondents vide the replying affidavit of their advocate Mr. Mulama Flavian. Mr. Mulama states in his affidavit that the bill of costs in this matter was taxed in October, 2018. That in the same month they wrote to the applicant’s advocates asking for payment but their letters and reminders went unheeded. That the applicant has had 11 months to pay the costs but ignored and/or neglected to do so. That they are opposed to monthly instalments of Ksh. 50,000/= but are amenable to two instalments of Ksh. 374,859. 50 otherwise execution should proceed.
3. The application came up for hearing today, the 9/10/19. The advocates for the 3rd and 4th respondents did not turn up. Mr. Mbaka holding brief for Amasakha & Co. Advocates for the applicant requested the court to allow the applicant to pay the sum owing in monthly instalments of Ksh. 50,000/=.
4. I have considered the application and the reasons in objection thereto. The applicant has not given any reasons why he should be granted time to pay the sum owing in monthly instalments of Ksh. 50,000/=. He has not told the court what he does for a living. He has not hinted as to whether he has any financial constraints. He has only stated in his affidavit that the notice given to him to pay the sum owing was not reasonable.
5. The costs owing to the respondents have been unpaid for the last one year. The offer to settle the sum owing in a monthly instalments of Ksh. 50,000/= is not reasonable. That will take about 15 months to pay in full.
6. I have considered that the respondents are ready to accept payment in two equal instalments. In the premises I order the applicant to defray the owing sum in two equal instalments of Ksh. 374,859. 50 starting on or before the 10/11/19 and ending on 10/12/2019. The respondents are at liberty to proceed with execution in case of the applicant failing to pay any single instalment.
Delivered, dated and signed in open court at Kakamega this 9th day of October, 2019.
J. NJAGI
JUDGE
In the presence of:
Mr. Mbaka holding brief for Amasakha for petitioner/applicant
No appearance for 3rd and 4th respondents
Parties: Petitioner/applicant - absent
3rd and 4th respondents - absent
Court Assistant - George