https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/549

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISRATE’S COURT AT BUNGOMA** **CMCC 116 OF 2017** JACKLYNE NAMULANDA BARASA (Suing as the legal representative of the estate the late ROBERT WAKHUNGU (DECEASED)…………………….……..PLAINTIFF/APPLICANT =VERSUS= WILLIAM GAMBA aka WILLIAM GAMSA OBED……………………………………………………...DEFENDANT/APPLICANT =AND= ZEPHANIA AMENYA AREBA T/A REMMA AUCTIONEERS…..……....INTERESTED PARTY **RULING** The application before court is dated 10/03/2026. Orders pending are No. (5) and (6) thereof. I shall set them out hereinbelow; 1. ………………………………. 2. ………………………………. 3. ………………………………. 4. ………………………………. 5. That the applicant be granted an extension of time to pay the decretal sum of Kshs. 3,194,115/= by monthly instalments to be determined by the court. 6. THAT the costs of this application be provided for. In the grounds set on the face of this application and in the supporting affidavit, the Applicant explained that; * He is willing to pay the decretal sum as set out in the warrants of attachment served upon him. * His insurer, is currently in the process of processing the payments and so he should be granted time to avail proof of the same. * The Plaintiff (herein referred as the Respondent) is not likely to suffer any prejudice should this application be allowed. This application was opposed by the Respondent *vide* her replying affidavit sworn on the 18/03/2026. She deposed amongst others; * That the Applicant is using delaying tactics of filing numerous applications to avoid paying the decretal sum. * That she has been in court for long since the year 2018 and so she will suffer great prejudice if this application is allowed. * That proposed payment of the decretal sum in monthly installments of Kshs. 150,000/= is not acceptable. * That the Applicant has not demonstrated how he will suffer prejudice if the orders he seeks are denied. * That Applicant has lied in the past lied and come to court upon being granted conditional stay by giving unfulfilled bank guarantees and so, he has in this application come to court with unclean hands. * That should the court be inclined to allow payment by instalments, then, the Applicant should be ordered to pay Kshs. 2,000,000 as the first instalment and balance of Kshs. 1,244,115/= in monthly installments of Kshs. 300,000/=. **Issues for determination** In this application, the issues are; 1. Whether the Applicant’s prayer to be allowed to pay the decretal sum by monthly installments is merited. 2. Whether the said application should be allowed and on what conditions. 3. Who should bear costs of this application. **Analysis & Determination** The court has considered this application. The prayer by the Applicant is that he be allowed to settle the decretal sum by monthly installments. The decretal sum stands at Kshs. 3,194,115/=. The installments he proposes is of Kshs. 150,000/= per month. Although the Respondent does not entirely oppose this application, she would wish that higher installments be imposed. Her actual proposal is that the Applicant should be ordered to pay Kshs. 2,000,000 as the first instalment and thereafter, settle the balance of Kshs. 1,244,115/= in monthly installments of Kshs. 300,000/=. The jurisdiction of court to order payment of the decretal sum by installments is provided for under the civil Procedure Rules. The same may be allowed if the Applicant demonstrates sufficient Cause or reason. Order 21 Rule 2 of the same applies in the current circumstances as it is to be invoked after judgment has already been passed. But such an order may only be made with the consent of the decree- holder and subject to imposition of such terms as to payment of interest, the attachment of the property of the judgment-debtor or the taking of security from him or otherwise as the court thinks fit. In the case of **Nzioki -v- Kenya Institute of Management & Another [2026] KEELRC1972 (KLR)(9 July 2026) (Ruling),** it was held that the above discretionary power should be exercised judicially and upon established principles in a manner which does not deprive the successful litigant the fruits of his judgment. As can be seen further from that decision and also from the case of **A. Rajabali Alidina – Remtulla Alidina & Another [1961] EA 565,**mere inability to pay is not of itself, a sufficient cause or reason. The court noted further that, the judgment debtor must make full and frank disclosure of his financial circumstances and demonstrate genuine inability to satisfy the decree immediately. None of the above was done by the Applicant in this case. However, it is clear that he relies on his insurer to pay the decretal sum and has indicated that they are in the process of preparing to make the same. That in essence, waives the requirements aforementioned. Since the payments are to be made by his insurer, the court would find his proposal too little to be accepted. Allowing him to pay Kshs. 150,000/= per month until payment in full, would if allowed, take more than 2 years to complete. This a long period and so I cannot fail to agree with the Respondent that she will suffer prejudice considering that this matter has been in court since the year 2018. In trying to balance things out for both parties, I would whilst invoking discretionary powers enshrined in Order 21 Rule 2 make orders allowing the applicant to pay at least a 3rd of the decretal sum up- front before he may liquidate the balance in reasonable monthly instalments thereafter. **Costs of this application** # Costs are discretionary but ordinarily, they follow the event- see Kaumbuthu v Muya (Civil Appeal E1381 & E1287 of 2024 (Consolidated)) [2026] KEHC 10628 (KLR) (Civ) (16 July 2026) (Judgment) and Nel v Kotecha Wholesellers Ltd [2026] KEELRC 1923 (KLR). # In this case, the Respondent being the holder of the decree in issue, is entitled to costs of this application in addition previously assessed costs. # Therefore, she is warded costs of this application. # In the upshot, this application is allowed as follows; # The Applicant be and is hereby allowed to liquidate the decretal sum by paying an initial deposit with the Respondent’s counsel of Kshs. 1,000,000/= within the next 30 days and thereafter, pay monthly instalments of Kshs. 150,000/= until payment in full. 1. In default of any one instalment, execution to issue. 2. Costs of this application are awarded to the respondent. Dated & Delivered in open court this 20th day of August 2026 In the presence of; Applicant- N/A Respondent- N/A R.B. N MALOBA(MS) SENIOR PRINCIPAL MAGISTRATE