[2020] KEHC 6416 (KLR)
The court found that the 1st defendant had not demonstrated his financial position to justify the proposed instalment payments. While the court acknowledged the defendant's claim of financial hardship, it emphasized that mere allegations of inability to pay are insufficient without supporting evidence. The court...
Source-derived case information.
- Citation
- [2020] KEHC 6416 (KLR)
- Parties
- Plaintiff: Ismail Hassan; Defendant: Dickson Wamiya; Defendant: NOSKCID (Africa Asset Management Ltd)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 192 of 2006
- Procedural Posture
- Civil Case / Ruling on Application for Settlement of Decretal Sum by Instalments
- Outcome
- Application partially allowed with structured payment orders.
- Judges
- MM Kasango
- Legal Topics
- Settlement of Debts, Payment by Instalments, Execution of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ismail Hassan
Plaintiff
Dickson Wamiya
Defendant
NOSKCID (Africa Asset Management Ltd)
Defendant
Procedural Posture
Civil Case / Ruling on Application for Settlement of Decretal Sum by Instalments
Legal Issues
- 1 Whether the defendant should be allowed to settle the decretal sum by monthly instalments.
- 2 Whether the amount proposed by the defendant is reasonable in the circumstances.
- 3 Whether the defendant has demonstrated sufficient inability to pay the decretal sum in full.
Ratio Decidendi
The court found that the 1st defendant had not demonstrated his financial position to justify the proposed instalment payments. While the court acknowledged the defendant's claim of financial hardship, it emphasized that mere allegations of inability to pay are insufficient without supporting evidence. The court balanced the defendant's circumstances against the plaintiff's right to prompt payment and determined that a lump sum payment followed by structured monthly instalments for a limited period was appropriate. The court further ordered that any default in payment would entitle the plaintiff to execute the judgment, thereby protecting the plaintiff's interests while allowing the...
Court Disposition
Application partially allowed with structured payment orders.
Orders
- The defendants shall make a lump sum payment of Ksh 200,000 to the decree holder by 30th April 2020.
- Thereafter, the defendants shall pay Ksh 20,000 per month to the decree holder with effect from 29th May 2020 for 24 months.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & TAX DIVISION
CIVIL CASE NO. 192 OF 2006
ISMAIL HASSAN .......................................................................PLAINTIFF/RESPONDENT
-VERSUS-
DICKSON WAMIYA
NOSKCID (AFRICA ASSET MANAGEMENT LTD)........DEFENDANTS/APPLICANTS
RULING
1. Judgment was entered herein, in favour of the plaintiff against the defendants, for Ksh 1,354,000 with interest, on 6th November 2012. The defendants have not to date paid that judgment amount. On 14th November, after the 1st defendant failed to show cause why he should not be arrested for failing to pay the decretal sum a warrant of arrest was issued. The 1st defendant as consequence of the issuance of the warrant of arrest was provoked to file the Notice of Motion dated 13th November 2019.
2. He seeks an order, by that application, to settle the decretal sum by instalments. He seeks to pay Ksh 20,000 per month. The decretal sum as at 14th November 2019 is now at Ksh 4,058,225. 68.
3. The 1st defendant stated that because of other family responsibilities and other debts he is presently servicing, Ksh 20,000 is all he can afford to pay.
4. The plaintiff’s view of that offer is that the amount is unreasonable because it will take 17 years to pay the entire decretal sum. In the plaintiff’s view the application is a delay tactic.
5. Justice G. L. Nzioka considered an application such as the one before me in the case Diamon Star General Trading LLC v Ambrose D.O. Rachier carrying on business as Rachier & Amollo Advocates (2018) eKLR and this is what the learned judge stated:
“47. However, the Applicant other than alleging inability to pay, has not demonstrated his financial position to enable the Court ascertain the reasonable amount that he can pay. It is trite law that unless there are good, sufficient and adequate reasons, a judgment debtor should be allowed to enjoy the fruits of the judgment. Therefore 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.”
6. Indeed even in this case the 1st defendant has not demonstrated his financial position. With that in mind I order as follows:
a. The defendants shall make a lump sum payment to the decree holder of Ksh 200,000 on 30th April 2020.
b. Thereafter the defendants shall pay to the decree holder Ksh 20,000 per month with effect from 29th May 2020 for 24 months. Thereafter the defendant shall pay to the decree holder the entire amount outstanding thereon.
c. In default of any one payment as ordered herein execution shall issue.
d. The 1st defendant shall pay the costs of the Notice of Motion dated 13th November 2019.
DATED, SIGNED and DELIVERED at NAIROBI this27thday of APRIL,2020.
MARY KASANGO
JUDGE
ORDER
In view of the measures restricting court operations due to the COVID-19 pandemic and in light of the Gazette Notice No 3137 of 17th April 2020 and further parties having been notified of the virtual delivery of this decision, this decision is hereby virtually delivered this 27th day of April, 2020.
MARY KASANGO
JUDGE