[2006] KEHC 1612 (KLR)
The court found that the applicants, particularly the 3rd defendant, had demonstrated severe financial hardship, including closure of business, loss of property, lack of income, and dependence on others for basic needs. The evidence was uncontested. The court exercised its discretion to allow payment of the decretal...
Source-derived case information.
- Citation
- [2006] KEHC 1612 (KLR)
- Parties
- Plaintiff: First National Finance Bank Limited; Defendant: Kersam Limited; Defendant: Mohamed Faraj Mohamed; Defendant: Salim Sherman
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 129 of 2002
- Procedural Posture
- Civil Case / Ruling on Application for Payment of Decretal Sum by Instalments
- Outcome
- Application granted. 1st and 3rd defendants to pay decretal sum by monthly instalments of Kshs. 5,000/=.
- Legal Topics
- Payment by Instalments, Debt Enforcement, Civil Judgment Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
First National Finance Bank Limited
Plaintiff
Kersam Limited
Defendant
Mohamed Faraj Mohamed
Defendant
Salim Sherman
Defendant
Procedural Posture
Civil Case / Ruling on Application for Payment of Decretal Sum by Instalments
Legal Issues
- 1 Whether the 1st and 3rd defendants should be allowed to liquidate the decretal sum by monthly instalments of Kshs. 5,000/=.
- 2 Whether the financial circumstances of the applicants justify deviation from immediate full payment of the decretal sum.
Ratio Decidendi
The court found that the applicants, particularly the 3rd defendant, had demonstrated severe financial hardship, including closure of business, loss of property, lack of income, and dependence on others for basic needs. The evidence was uncontested. The court exercised its discretion to allow payment of the decretal sum by monthly instalments of Kshs. 5,000/=, reasoning that immediate enforcement would be futile and counterproductive. The court further ordered periodic review of the applicants' financial circumstances to determine if higher payments could be made in the future.
Court Disposition
Application granted. 1st and 3rd defendants to pay decretal sum by monthly instalments of Kshs. 5,000/=.
Orders
- The 1st and 3rd defendants/applicants shall liquidate the plaintiff's claim in monthly instalments of Kshs. 5,000/= from today until further orders.
- This matter shall be mentioned every six months from today until further orders.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Civil Case 129 of 2002
FIRST NATIONAL FINANCE BANK LIMITED ………………………………………. PLAINTIFF
- Versus -
1. KERSAM LIMITED
2. MOHAMED FARAJ MOHAMED
3. SALIM SHERMAN …………………...........................................……………… DEFENDANTS
Coram: Before Hon. Mr. Justice L. Njagi
Mr. Kassim Shah for Respondent
Mr. Mogaka for 1st Defendant
Mr. Nyongesa for 3rd defendant
Court clerk – Kinyua
R U L I N G
The application before the court is made by way of a chamber summons dated 16th November, 2005, and taken out under Order XXII rule 22, and Order XX rule 11 of the Civil Procedure Rules. The applicants, who are the 1st and 3rd defendants in the suit, pray that this Honourable court be pleased to order that the applicants do liquidate the decretal sum of Kshs. 600,000/= in equal monthly instalments of Kshs. 5,000/= until payment in full.
The application is supported by the annexed affidavit of Salim Sherman, the 3rd defendant, and is based on the grounds, inter alia, that the plaintiff has obtained judgment against the 1st and 3rd defendants on the basis of the consent recorded on the 13th October, 2005 for an all inclusive sum of Kshs. 600,000/=. Secondly, the 1st and 3rd defendants are unable to pay the decretal sum at once due to the fact that the 1st defendant wound up its business and operations and the 3rd defendant has many judgments entered against him which ought to be discharged. However, he is wiliing and ready to pay the decretal amount in monthly instalments of Kshs. 5,000/=. The final ground upon which the application is based is that the 3rd defendant is on the brink of being declared bankrupt for failure to satisfy his financial obligations.
These grounds are amplified in the annexed affidavit of the third defendant aforesaid. That affidavit points a very sad picture of the applicant and his business operations. According to the deponent, the first defendant had its registered offices and place of business at Ambalal House. However, it closed its business and operations in 2001 following a distress levied on its office equipment as a consequence of non-payment of rent arrears. The deponent’s personal inability to pay the decretal amount is mainly because he has been sued in various other cases where judgments have been entered in some of them against him and the judgments remain unsettled to date. His residential house was auctioned by Barclays Bank Limited in August, 2001, in exercise of that bank’s statutory power of sale for unsatisfied loan advances subsequent to his execution of a charge over the house.
As a result of severe financial constraints, the deponent’s as well as the first defendant’s accounts have been closed. The deponent has no regular employment at the moment but depends entirely on donations from friends, relatives and other well wishers for his upkeep and general survival. Currently, he is staying in a house owned by one of his daughters who has agreed to temporarily provide shelter to the third defendant and his wife in the hope that his financial situation will improve for the better. It is on account of this gloom that the applicant seeks to be allowed to pay the decretal amount by monthly instalments of Kshs. 5,000/=.
I have considered the plight of the applicant who, according to the incontroverted evidence he has placed before the court, is no more than a man of straw at the present time. Hopefully, his financial plight might yet improve with the passage of time. True, if his application is allowed, it will take a cool ten years before he can pay the decretal amount. To take him to civil jail is to waste good money after bad. Until his lot improves, I see little or no alternative but to allow him to pay the decretal sum by the paltry sum he has offered. If and when his financial circumstances improve, he should reciprocate this gesture by offering to pay something substantial.
For the above reasons, it will become necessary to mention this matter every so often in order to ascertain whether the applicant’s fortunes have changed for the better. I accordingly grant prayer 3 of the application and order that the 1st and 3rd defendants/applicants do liquidate the plaintiff’s claim in monthly instalments of Kshs. 5,000/= from today until further orders.
This matter be also mentioned every six months from today until further orders.
Dated and delivered at Mombasa this 7th day of July, 2006.
L. NJAGI
JUDGE