https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/130

Kahuki v Badar Hardware & 5 others (Civil Case 363 of 2013) [2026] KEMC 130 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEMC 130 (KLR) Republic of Kenya In the Makindu Law Courts Civil Case 363 of 2013 YA Shikanda, SPM May 26, 2026 Between Francis Kareithi Kahuki Plaintiff and Badar Hardware 1st Defendant Mahat Ibrahim Mohammed 2nd Defendant and Citi Hoppa Limited 1st Third party Kariuki Joseph t/a Channia Special 2nd Third party William Mwangangi t/a Neema Royal Coach 3rd Third party Harrison Mwendwa 4th Third party Ruling Before me is an application dated 29/8/2025 filed by the 1st Third party (hereinafter referred to as the applicant). The other prayers have been spent save for the following: 1.That this Honorable Court be pleased to allow the 1st Third Party/Applicant to liquidate its 60% portion of the decretal sum by way of monthly instalments of Kenya Shillings One Hundred Thousand (Kshs. 100,000/=) until payment in full; 2.That the costs of this application be in the cause.The application is supported by an affidavit sworn by one Nduma Abackson, who claimed to be the applicant’s Claims Manager and is premised on the following general grounds:a.The Applicant is a reputable public service transport company that is ready, willing and committed to satisfy its portion of the decretal sum, but only seeks reasonable indulgence of this Honourable Court to liquidate the same in monthly instalments of Kshs.100, 000/=;b.Unless the orders sought are granted, the Plaintiff is likely to proceed with execution, which will occasion substantial loss, disrupt business operations, and prejudice the Applicant irreparably, as its tools of trade being its buses will be confiscated and sold, thereby curtailing its right to property;c.The Plaintiff will not suffer prejudice if the orders sought are granted, as the Applicant has demonstrated good faith and ability to pay the decretal sum in an orderly manner;d.It is in the interest of justice, equity and fairness that this Honourable Court grants the orders sought. 3.In the affidavit in support of the application the applicant reiterated the grounds on the face of the application and maintained that it was willing to settle the decretal amount but prayed for indulgence of the Honorable Court and a structured payment to avoid disruption of its essential services to the public. The Plaintiff's Response 4.The plaintiff opposed the application by filing a Replying affidavit. He opposed the application on the following summarized grounds:1.The application is made in bad faith, is frivolous, vexatious, and is only intended to delay, obstruct and/or defeat the execution of a lawful decree issued by this Honourable Court;2.Judgment was delivered on 23rd February 2022, and since then, the Applicant has failed and/or neglected to settle the decretal sum or take any proactive steps to challenge the judgment within the legally prescribed time;3.The Applicant has not offered any justifiable reason for the inordinate delay of over three (3) years in bringing this application, which delay is deliberate, prejudicial, and unjust;4.The orders sought for stay of execution and liquidation by way of monthly instalments are unwarranted, as the Applicant has failed to demonstrate financial incapacity or provide any form of security to warrant such indulgence;5.The proposal to pay Kshs. 100,000/= per month is unacceptable, unreasonable, and amounts to further delaying tactics. It would take more than 21 months to satisfy the outstanding decretal sum of Kshs. 2,055,259/=, which is unjust and prejudicial to the plaintiff as the decree-holder;6.The plaintiff is entitled to enjoy the fruits of his judgment, and it is in the interest of justice that execution proceeds without further obstruction, especially considering the prolonged delay already occasioned by the Applicant;7.If the Honourable Court is inclined to admit the application, then the installment payments should be limited to six (6) equal monthly instalments, owing to the following:a.The application is made by the Applicant’s insurers, who are capable of satisfying the decretal sum and are obligated under their licensing authority to do so;b.The Applicant has admitted that it is a reputable public service transport company with a known asset base and continues to operate within Nairobi County. As such, any plea of financial incapacity or proposal for prolonged repayment is merely speculative and intended to frustrate me as the decree-holder;c.The Applicant has not provided any audited financial statements, bank records, or credible documentation to demonstrate actual financial distress that would warrant a repayment period exceeding six months;d.The prolonged delay of over three years in filing this application is evidence of the Applicant’s lack of urgency or good faith, and allowing an extended repayment period would only serve to reward such conduct;e.The decretal sum has been outstanding for an inordinate period, during which time the value of the award has been eroded by inflation and the prevailing economic conditions, further prejudicing the decree-holder;f.It is in the interest of justice, equity, and fairness that judgment creditors enjoy the fruits of their judgment without undue delay, particularly where the judgment debtor is not indigent or incapable of complying with the decree in full within a reasonable timeframe.8.Granting the orders sought would set a bad precedent, encourage non-compliance with court orders, and undermine the authority of this Honourable Court’9.The instant application is an abuse of the court process and should be dismissed with costs. Main Issues For Determination 5.In my opinion, the main issues for determination are as follows:i.Whether the applicant should be allowed to defray the decretal sum by instalments;ii.If so, whether an order for instalments of Ksh. 100,000/= per month is fair and reasonable;iii.Who should bear the costs of this application? The Applicant's Submissions 6.In the written submissions filed on behalf of the applicant, the applicant relied on Oder 21 rule 12 of the Civil Procedure Rules and contended that the proposal for payment of Ksh. 100,000/= per month was reasonable, proportionate, and practical, given the Applicant’s business operations. The Applicant argued that its conduct has been consistent and with good faith. The applicant urged the court to exercise its discretion in their favour and attached copies of authorities relied upon. The Plaintiff/respondent's Submissions 7.The plaintiff submitted that the The Applicant bears the burden of demonstrating sufficient cause to justify interference with the Decree Holder’s right to enjoy the fruits of his judgment. The plaintiff further submitted that the Applicant has not tendered any evidence of financial hardship or incapacity. That there are no audited financial statements, bank records, or credible documents before the Court to substantiate the plea of inability to pay the decretal sum. The plaintiff contended that mere assertion of hardship, without proof, does not meet the threshold required under the law. That the Applicant, being a reputable and operational transport company, cannot be heard to claim financial incapacity. 8.The plaintiff submitted that the applicant waited for over three years from the date of judgment to make the present application and that no explanation for the inordinate delay has been provided. The plaintiff argued that the decretal sum has remained unpaid for over three years since judgment. That allowing payment by instalments of Ksh. 100,000/= per month would extend satisfaction of the decree for nearly two years, during which the value of the award continues to erode due to inflation. The plaintiff submitted that the Applicant’s proposal is neither reasonable nor equitable. That if the Court is inclined to grant indulgence, payment should be made in six (6) equal monthly instalments, considering the Applicant’s capacity and the protracted delay. The plaintiff also annexed copies of the authorities relied upon. Analysis And Determination 9.I have carefully considered the application and given due regard to the submissions made by the parties. Order 21 rule 12(2) of the Civil Procedure Rules provides thus:“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 instalments 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". (Underlining mine) 10.From the above provision, it is clear that the court has discretion to allow the judgment debtor to pay the decretal sum by way of instalments. However, the judgment debtor must show sufficient cause and the court may impose such terms as it thinks fit. There are numerous judicial decisions in which the courts have allowed judgment debtors to pay by instalments. I will highlight a few. In the case of Winfred Nyawira Maina v Peterson Onyiengo Gichana [2015] eKLR, the court held that in order for the court to exercise its discretion to allow payment of the decretal sum by instalments, sufficient cause must be shown and the indulgence to pay by instalments may be on such terms that the court thinks fit. In Jabali Alidina v Lentura Alidina [1961] EA 565, the court held thus:“...........the court's discretion to order payment of the decretal amount in instalments is one which must be exercised in a judicial and not arbitrary manner. The onus is on the applicant to show that he is entitled to indulgence under this rule. It is for the applicant to show 'sufficient cause' for indulgence being shown to him......" 11.In the case of Lavington Security Limited v Nairobi City Water & Sewerage Company Limited [2014] eKLR, the court observed that in such an application, of great significance are:1.The circumstances of the case;2.The conduct of the parties;3.The willingness and bona fides of the applicant to pay a fair proportion of the debt; and4.The application is made without undue delay. 12.In the authority of Keshvaji Jethabhai & Bros Limited v Saleh Abdulla [1959] EA 260, the following principles were laid down:a.Whilst creditors’ rights must be considered each case must be considered on its own merits and discretion exercised accordingly;b.The mere inability of a debtor to pay in full at once is not a sufficient reason for exercise of the discretion;c.The debtor should be required to show he is bona fides by arranging prompt payment of a fair proportion;d.Hardship of the debtor might be a factor, but it is a question in each case whether some indulgence can fairly be given to the debtor without prejudicing the creditor. 13.In Diamond Star General Trading LLC v Ambrose D O Rachier carrying on business as Rachier & Amollo Advocates [2018] eKLR, the court held that an applicant ought to demonstrate his financial position to enable the court ascertain the reasonable amount that he can pay. That unless there are good, sufficient and adequate reasons, a judgment debtor should be allowed to enjoy the fruits of the judgment. Further, as much as the Court will consider circumstances under which this debt was incurred, the Court will also have to consider the right of the judgment creditor to prompt payment. 14.In the authority of Kabaru & another v Maina [2025] KEHC 4785 (KLR), the court had this to say:“In assessing whether a debtor can pay the decretal sum in instalments, the court considers the debtor’s financial situation, typically demonstrated through financial records such as bank statements and income declarations. In Kenya Power & Lighting Company Limited v. Benjamin Njiru Ndwiga (2014) eKLR, the court emphasized that it is the debtor’s responsibility to provide sufficient evidence of financial incapacity to justify instalment payments.” 15.Judgment herein was delivered on 23/2/2022. The applicant did not bother to settle the decretal sum. The instant application was filed in August, 2025. That is after a period of over three years from the date of judgment. As rightly submitted by the plaintiff, the applicant has not explained the delay in filing the application. The applicant claims to be acting in good faith yet it did not bother to settle the decretal sum even partially. The applicant appears to have gone into slumber and was woken up by the application for execution of the decree. It has been over eight (8) months since the application was filed yet the applicant has not paid anything to the plaintiff to demonstrate good faith other than the Ksh. 500,000/= that was ordered by the court. 16.The applicant has not even stated that it is financially incapacitated and thus unable to pay the decretal sum at once. It has not demonstrated its financial incapacity through tangible evidence. Payment in instalments cannot be allowed as a matter of course. Sufficient cause must be shown by the applicant. It is not for the decree holder to show that he will be prejudiced by payment in instalments, rather, it is the duty of the judgment-debtor to show that it is unable to pay the decretal sum at once. I see no good faith on the part of the applicant to settle the decretal sum. The applicant is just buying time. A person who fails to satisfy a decree against them for over three years and still fails to do so upon being given more time cannot purport to be acting in good faith. Nothing stopped the applicant from making partial payment pending the determination of the instant application. The applicant has resorted to filing multiple applications calculated to delay or derail execution of the decree herein. 17.Without material from the applicant, the court cannot ascertain its inability to pay the decretal sum at once. I agree with the plaintiff that the proposal to settle the decretal sum in instalments of Ksh. 100,000/= per month is unreasonable, not forgetting that the applicant waited for three years and even after filing the application, no efforts have been made to settle the decretal sum. As already indicated, it has been over eight months since the application was filed. Where is the good faith? The exercise of judicial discretion is founded on principles of fairness, candour, and good faith. A litigant who has acted dishonestly, oppressively, or in bad faith disentitles himself from the equitable and discretionary intervention of the court. He who comes to equity must come with clean hands. Equity does not aid a wrongdoer and delay defeats equity. I find that no sufficient grounds have been advanced to warrant granting of the orders sought. Disposition 18.In view of the foregoing, I find that the application dated 29/8/2025 is devoid of merit. Consequently, I make the following orders;a.The application dated 29/8/2025 is hereby dismissed;b.The applicant to settle the decretal sum within 45 days from today; failure to which the plaintiff shall be at liberty to execute;c.The costs of the application shall be borne by the applicant;d.In view of this ruling, the application dated 27/4/2026 is hereby marked as spent/overtaken by events;e.For avoidance of doubt, there shall be a stay of execution of the decree herein for a period of 45 days from today, to enable the applicant settle what is due and owing from them. DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 26TH DAY OF MAY, 2026.Y.A SHIKANDASENIOR PRINCIPAL MAGISTRATE.