[2021] KECPT 593 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.534 OF 2018

ANGELA AKINYI OKELLO...........................................DECREE HOLDER

VERSUS

LUCIA MUTHONI MERIA........................................JUDGMENT DEBTOR

RULING

Vide the Application dated 1. 11. 2019, the Judgment Debtor has moved this Tribunal seeking for Orders inter alia:

a. That this Application be certified as urgent and be heard expeditiously;

b. That this Honourable Tribunal do hereby issue orders for payment of the decretal sum by the Judgment Debtor by monthly installments of Kshs.10,000/= with effect from 5th November 2019 and thereafter on or before the 5th day of each succeeding month until payment in full;

c. That the parties be at liberty to apply for such orders as may be expedient pending full payment of the decretal sum; and

d. That the costs of this Application be provided for.

The Application is supported by the grounds on its face and the following Affidavits:

a. Supporting Affidavit sworn by the Judgment Debtor on 1. 11. 2019; and

b. Supplementary Affidavit sworn by the said Judgment Debtor on 23. 11. 2020.

The Decree Holder has opposed the Application vide the Replying Affidavit sworn by herself on 13. 11. 2020.

Vide the directions given on 19. 10. 2020, the Application was canvassed by way of written submissions. The Judgment Debtor filed hers on 24. 11. 2020 while the Decree Holder did so on 25. 11. 2020.

Judgment Debtor’s Contention

Vide the instant Application, the Judgment Debtor prays to be allowed to liquidate the decretal amount on installments on account of the fact that she is not gainfully employed and that she is experiencing diminished income following the collapse of her business. That she currently relies on contractual jobs from educational institutions for subsistence.

Decree Holder’s Case

The Decree Holder has opposed the Application on grounds that the Judgment Debtor is not keen on settling the entire debt. That if she had good faith and/or believed in what she prays in the instant Application, she should have been making the said monthly installments since November, 2019 when she filed the instant Application. That she has never paid any penny since that date.

Judgment Debtor’s Supplementary Affidavit Sworn on 23. 11. 2020

Vide this Affidavit, the Judgment Debtor has blamed covid-19 for failure to settle the decretal amount by way of installments. That because of this, she is praying to be allowed to settle the decretal amount by way of monthly installments of kshs.5000/=.

Issues for determination

We have framed the following issues for determination

a. Whether the Judgment Debtor has laid a proper basis to be allowed to settle decretal amount by way of installments;

b. Who should meet the cost of the Application?

Settlement of Decree by way of installments

Order 21 Rule 12 of the Civil Procedure Rules is the legal framework for settlement of a decree by way of installments. It provides thus:

“ 1. Where and is so far as a decree is for payment of money, the court may for any sufficient reason at the time of passing the decree order that payment of the amount decreed shall be postponed or shall be made by installments.....

2. After passing of any of such decree, the court may on the Application of the Judgment Debtor and with the consent of the Decree- Holder or without the consent of the Decree Holder for sufficient cause shown, Order that the payment of the amount decreed to be postponed or be made by installments 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.”

It is thus apparent that the Tribunal has power to Order for payment of decretal amount on installments. This power is discretionally. This was the holding of the court in the case of KTK Advocates – vs- Baringo County Government[2018] eKLR. In the pertinent part, the court held that:

“ It is clear from the above rules that although the court may allow settlement of a decree by installments, that is at the discretion of the court and as usual, it must be exercised judicially and only in circumstances that justify exercise of discretion.”

While referring to the decision of the court in the case of Keshval Jethabhai & Brothers Limited – vs- Saleh Adbul [1959] EA 260,the court in the KTK case said this about the principles to be considered while considering an Application of this nature.

“ In the case of Keshval Jethabhai & Brothers Limited - vs- Saleh Abdul [1959]EA 260,the court stated the principles that should apply in considering such an Application, namely; each case must be considered on its own merit; mere inability to pay in full at once is not sufficient reason for exercising the discretion, the debtor should show Bonafide by arranging prompt payment and that though hardship may be a factor, the court has to consider whether indulgence should be given to the debtor without prejudice to the decree Holder. The above decision shows clearly that it is for the judgment debtor to show cause and justify indulgence. “

In the case of Hildegard Ndelut – vs- Letkina Dairies Limited & Another [2005] eKLR, the court held:

“ 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 bonafides for arranging for fair payment proposals to liquidate the amount.”

We have extensively quoted the foregoing authorities so as to set out, in no uncertain terms, the operative principles to be applied in considering the current application. From these decisions, we deduce the following:

a. That the Tribunal has jurisdiction to Order for payment of a decretal Amount by installments.

b. That before the Tribunal can exercise the said jurisdiction the Judgment Debtor must satisfy the following conditions:

(i) Show bonafides by arranging prompt payment

(ii) The Decree Holder will not suffer any prejudice

(iii) She is genuinely in a difficult position

(iv) Show seriousness in payment of the said amount.

The question abounds therefore as to whether the current Application meets these conditions. Our answer is in the negative. The judgment debtor has neither shown seriousness to pay the decretal amount nor shown bonafides to settle the same promptly. Whilst the instant Application was made on 1. 11. 2019, the Judgment Debtor has not made any effort to settle it even in the lowest of figures. There is thus no guarantee that the Judgment Debtor will make payment even if she is allowed to do so in installments. We say so taking into account the fact that the monies sought to be recovered were deducted from a person who, out of good faith, guaranteed the Judgment Debtor the said loan. She did not benefit from the loan at all. She cannot thus be held at ransom by the Judgment Debtor’s machinations.

Conclusion

The upshot of the foregoing is that we do not find merit in the Judgment Debtor’s Application dated 1. 11. 2019 and hereby dismiss it with costs to the Decree Holder.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 28TH DAY OF JANUARY, 2021.

HON. B. KIMEMIA CHAIRPERSON ................................

MR. B. AKUSALA MEMBER .................................

MR. R. MWAMBURA MEMBER ..................................