[2022] KEHC 1446 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYER[

CIVIL SUIT NO.81 OF 2007

ANTONY MAINA WILLIAMS ......................DECREE HOLDER//APPLICANT

VERSUS

CRISPUS WAITHAKA GACHINI ..........JUDGMENT DEBTOR/RESPONDENT

RULING

1. The applicant has filed an application dated 11th November 2021 seeking for orders that:

(1) Spent

(2) Spent

(3) The property known as IRIAINI/KAIRIA/1795 registered in the name of the respondent be disposed of in a public auction to recover the balance of the decretal sum herein of Ksh.1,350,000/- together with costs and interest of Ksh. 143,175/-.

(4) That the respondent do grant free and unlimited access to the subject property for purposes of inspection, valuation and execution.

(5) That the court do set the terms and conditions of sale of the subject property.

(6) That the costs of valuation, auctioneers fees and any other related expenses be paid from the proceeds of the sale.

(7) That the costs of the application be borne by the applicant.

2. The application is based on the grounds that the applicant holds a decree against the respondent dated 18th March 2021 for the amount of money stated above. That since the delivery of the judgment the respondent has made partial settlement of Ksh.450,000/- and the rest of the decree remains unsatisfied to date. That the respondent has not made any additional payments towards satisfaction of the decree since the month of December 2020. That the applicant is entitled to this court`s assistance to attach and sell the subject property so as to recover the fruits of the judgment.

3. The application was opposed by the respondent vide his replying affidavit sworn on the 17th November 2021 in which he deposes that he has been diligently paying the decretal sum and has so far paid a total sum of Ksh.593,175/- and not Ksh.450,00/- as alleged by the applicant. That he is a businessman and the effects of CVID-19 have rendered him unable to pay as agreed in the consent dated 2nd July 2020. That the selling of his stated land is a drastic move as he has shown willingness to offset the amount by paying the first 5 instalments. That his mother Purity Nyachomba resides on the said land which is extensively developed, hence disposing it of will render her destitute. That he is seeking for the court`s indulgence to pay the outstanding balance of Ksh.756,825/- from the beginning of January 2022.

4. The respondent submitted that it is in the interests of justice that he, in the first instance, be given time to offset the balance as opposed to disposing of his property. That article 159 (2)(d) of the constitution implores courts to administer justice without undue regard to procedures and technicalities.

5. The applicant on his part submitted that the respondent has admitted the indebtedness. That he has not presented any material before this court disclosing his income and showing how it has been affected by COVID-19. Therefore, that this is a mere allegation. That it is evident that the respondent is intent on not satisfying the debt as he never complied with his proposal to settle the outstanding amount from the month of January 2022. That the judgment debt arises out of monies advanced to the respondent more than 15 years ago.

6. I have considered the application, the grounds in support of the application and the grounds in opposition thereto. What is worth of note is that the matter was filed in in court in the year 2007. Judgment was entered for the applicant by consent of the parties on the 2nd July 2020 for the sum of Ksh.1,350,000/- and costs of Ksh.143,000/-, thereby making a total of Ksh.1,493,175. Attempts by the applicant to execute the decree have not borne fruit. The applicant has then resulted to the current application that seeks that his cited land be sold by public auction to recover the balance of the decretal sum.

7. The respondent filed payment receipts to show that he has paid a total of Ksh.593,175/-. However, since the decretal sum as per the consent of 2/7/2020 was Ksh.1,493,175/-, the balance that remains unpaid is Ksh.900,000/- and not what the respondent contends that the balance is Ksh.756,825/-.

8. The respondent objects to the application on the grounds that he has been willing to pay the decretal sum only that his business has been affected by the effects of COVID-19. He further says that his mother is settled on the subject land and therefore that disposing it of will render her destitute.

9. I have considered the reasons being advanced by the respondent on why the orders sought should not issue. Though he says that he is willing to offset the debt, it is to be noted that he has not made any payments since the month of December 2020, which is about 15 months ago. He had promised to settle the debt from January 2022 but he never honored the promise. He has not placed anything before the court to show how his business has been affected by COVID-19. The plea that the sale of the land will render his mother destitute is not a valid reason as to why the orders sought should not be granted, however sympathetic the court may be over the issue, since the land is registered in the name of the respondent. In the premises the court is constrained to allow the application.

10. Consequently, prayers 3 – 7 of the application dated 21st July 2021 are hereby granted as prayed, save that the court will set the terms and conditions of sale in prayer 5 of the application during the sale.

Orders accordingly.

DELIVERED, DATED AND SIGNED AT NYERI THIS 17TH DAY OF MARCH 2022.

J.N. NJAGI

JUDGE

In the presence of:

Mr Okundo : - Holding brief for Michuki for Decree holder/Applicant

Miss Wamaitha: - Holding brief for Miss Muchangi for Judgment Debtor/Respondent

Court Assistant:- Kinyua

30 days R/A.