[2021] KECPT 576 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO.479 OF 2017

BERNICE KATUNGE MUTUKU....................CLAIMANT

VERSUS

KWETU SACCO SOCIETY LIMITED....RESPONDENT

RULING

Vide the Application dated 22. 10. 2020, the Respondent has moved this Tribunal seeking for Orders inter alia:

a. That this Application be and is hereby certified urgent and be heard ex-parte as regards prayer 2;

b. That pending the inter-parties hearing and determination of this Application there be a stay of execution and/or execution proceedings arising from the Judgment entered herein on the condition that the Respondent do pay the Claimant a sum of Kshs.206,923/= within seven (7) days hereof;

c. That after the payment in 2 above, the Respondent/Applicant be and is hereby allowed to pay the balance of the decretal sum thereof Kshs.168,193 in seven (7) equal monthly installments beginning from the 10th of November 2020, and every subsequent 10th day of every month thereafter until payment in full; and

d. Costs be provided for.

The Application is supported by the grounds on its face and the Affidavit sworn by Samuel Muthoka on 22. 10. 2020. The Claimant has opposed the Application vide the Replying Affidavit sworn by himself on 4. 11. 2020.

Vide the directions given on 16. 9.2020, the Application was canvassed by way of written submissions. The Claimant filed his submissions on 8. 12. 2020 but the Respondent did not despite several reminders.

Respondent’s Case

Vide the instant Application, the Judgment debtor seeks to be allowed to settle the balance of decretal amount of Kshs.168,193/= in seven (7) equal monthly installments on account of the fact that it is saddled with many share refunds claims lodged with the Tribunal. That if the instant claim is paid in full, then it will be destabilized.

Claimant’s Case

The Claimant has opposed the Application on the grounds that he is entitled to enjoy the fruits of his judgment. That a period of over one (1) year has passed since the Respondent was served with the Decree but it has not made any effort to settle the decretal amount.

That it is not true that Covid-19 has hindered the Respondent’s ability to pay the decretal amount. That the decree herein was served upon the Respondent 5 months before Covid -19 struck.

Issues for determination

We have framed the following issues for determination

a. Whether the Respondent has made out a proper case to be allowed to settle the decretal amount on installment;

b. What orders are available in the circumstances?

Settlement of decretal amount by way of installments

We have jurisdiction to make an Order regarding payment of decretal amount by way of installments by dint of Order 21 Rule 12of the Civil Procedure Rules. It provides thus:-

“ 12 (2) After passing of any 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 be postponed or be made by installments or 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..”

Whether or not to allow a party to settle the decretal amount by way of installments is a matter of discretion. This was the holding of the court in the case of KTK Advocates – vs- Baringo County Government[2018] eKLR.

Looking at the provisions of the law in light of the instant Application, we are satisfied that the Respondent has made out a case to warrant us to allow it to settle the decretal amount by way of installments. For starters, and as a show of good faith, it has made a one-off payment of Kshs.209,923/-. What is thus due and outstanding is Kshs.168,193/=.

We are alive to the fact that the Respondent is facing liquidity problems and that if it is following upon on members who had taken loans and have not repaid the same. That this recovered amounts are applied towards settlement of member- refunds. If we thus allow the Claimant to execute the decretal amount at once, then the Respondent may plunge into total financial crisis thus denying their creditors an opportunity to recover their monies.

Conclusion

The upshot of the foregoing is that we find merit in the Application and allow it based on the following terms:

a. That the Respondent is allowed to settle the balance of the decretal amount of Kshs. 168,193/= by way of five (5) equal monthly installments of Kshs.33,600/= effective 10th of November 2020;

b. That should the Respondent fail to pay any of the installments as and when they fall due, then the Claimant will be entitled to recover the entire decretal amount without further reference for the Tribunal.

c The Respondent to meet the cost of this Application.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 4TH DAY OF MARCH, 2021

Hon. B. Kimemia Chairperson Signed 4. 3.2021

Hon. J. Mwatsama Deputy Chairperson Signed 4. 3.2021

B. Akusala Member Signed 4. 3.2021

No appearance for parties

Hon. B. Kimemia Chairperson Signed 4. 3.2021