[2004] KEHC 1937 (KLR)
The court declined to grant the application for payment of the decretal amount by instalments because the applicant failed to demonstrate sufficient cause. The applicant had previously made proposals for payment, both personally and through her advocates, which were accepted by the decree holder but not honoured. No...
Source-derived case information.
- Citation
- [2004] KEHC 1937 (KLR)
- Parties
- Plaintiff: Meridien Biao Bank Ltd (In Liquidation); Defendant: Christopher Muriuki Karue; Defendant: Lydiah Wandia Karue t/a Wandika General Agencies
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 470 of 2001
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution and Payment by Instalments
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Payment by Instalments, Judgment Debtor Conduct
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Meridien Biao Bank Ltd (In Liquidation)
Plaintiff
Christopher Muriuki Karue
Defendant
Lydiah Wandia Karue t/a Wandika General Agencies
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution and Payment by Instalments
Legal Issues
- 1 Whether the court should grant a stay of execution and allow payment of the decretal amount by instalments.
- 2 Whether the applicant has shown sufficient cause to warrant the exercise of the court's discretion under Order XX Rule 11(1) of the Civil Procedure Rules.
Ratio Decidendi
The court declined to grant the application for payment of the decretal amount by instalments because the applicant failed to demonstrate sufficient cause. The applicant had previously made proposals for payment, both personally and through her advocates, which were accepted by the decree holder but not honoured. No explanation was provided for the failure to make any payments as promised. The court emphasized that the exercise of discretion under Order XX Rule 11(1) is not absolute and requires consideration of the judgment debtor's conduct and bona fides, not merely financial hardship. The applicant's repeated default and lack of explanation led the court to conclude that she was not...
Court Disposition
application dismissed with costs
Orders
- The application dated 17th November, 2003 is dismissed with costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS) CIVIL SUIT NO 470 OF 2001
MERIDIEN BIAO BANK LTD
(IN LIQUIDATION) ……………………….……………………….…………….. PLAINTIFF
VERSUS
CHRISTOPHER MURIUKI KARUE
LYDIAH WANDIA KARUE T/A
WANDIKA GENERAL AGENCIES …………………….…………………..……. DEFENDANTS
RULING
This is an application by Lydiah Wandia Karue one of the defendants for stay of execution and payment of the decretal amount in instalments of Kshs.30,000/= per month. The application is by Chamber Summons made under Order XXI Rule 22 (1) (2), Order XX Rule 11 (1) Section 3A of the Civil Procedure Act. It is also purportedly made under “all other enabling provisions of the law.”
Counsel for the said Defendant/Applicant relies on the grounds set out in the body of the Chamber Summons and on the Applicant’s affidavit in support sworn on 17th November, 2003. The applicant in her affidavit aforesaid says at paragraph 9 that she is “just a house wife with no income.” She proposes to pay the decretal amount at the rate of Kshs.30,000/= per month from money to be remitted by her husband who is now working in Botswana. She has not exhibited evidence of this in her affidavit.
Counsel for the decree holder opposes this application and has filed a replying affidavit of one B K Mitei the liquidation agent of the decree holder in response to the Applicant’s application aforesaid. At paragraph 5 of Mr Mitei’s said affidavit dated 18th November, 2003 it is deponed that on 11th September, 2003 the judgment debtors made a proposal to pay a lump sum of Kshs.80,000/= before 30th September, 2003 and thereafter pay monthly instalments of Kshs.40,000/=. I have seen the letter of 11th September, 2003 from the judgment debtors advocates addressed to the Decree holder’s advocates in which the said proposal was made. This proposal was accepted by the Decree holder in their advocates letter dated 25th September, 2003. The deposit of Kshs.80,000/= was not made. None of the instalments promised was paid.
The Applicant in the present application proposes to pay instalments of Kshs.30,000/= per month with effect from 30th November, 2003 and thereafter each succeeding month until payment in full. No single instalment has been paid since.
I am being urged to order payment by instalments notwithstanding the judgment debtor’s default.
Under Order XX Rule 2 I have a discretion to postpone payment of the decretal amount or order payment of the decretal amount by instalments. This discretion however is not absolute. “Sufficient cause” must be shown. This requirements and conditions had been stated in the same words in the case of RAJABALI ALIDANA VS REMTULLA ALIDINA & ANOTHER (1961) E A 565 .
The circumstances to be taken into account include the “conduct” and “bona fides” of the judgment debtor and not the financial position of the debtor alone.
In my ruling the judgment debtor has not shown sufficient cause for my discretion to be exercised in her favour. Her conduct has also not been without blame. She made a proposal in the present application which she failed to honour. A previous proposal through her advocates was also not honoured. No explanation was made as to why any of the proposals was not honoured. Justice looks at both sides of a dispute. The circumstances of the present case are such that I must refuse to grant the prayers sought in the application dated 17th November, 2003 which is hereby dismissed with costs.
Dated and Delivered at Nairobi this 16th day of January, 2004.
F. AZANGALALA
JUDGE
16. 1.2004