[2019] KEELC 4769 (KLR)
The court found that while the applicant is elderly, evidence provided by the respondent (a letter from the Kilifi Land Adjudication Officer) established that the applicant jointly owns substantial land holdings. The applicant did not rebut this evidence. The court considered the applicant's age and means but found...
Source-derived case information.
- Citation
- [2019] KEELC 4769 (KLR)
- Parties
- Appellant: James Kaluko Kyalo; Respondent: Julius Mwangangi Mulu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 246B of 2011
- Procedural Posture
- Civil Appeal / Ruling on Application for Payment of Decretal Sum by Instalments
- Outcome
- Application partially allowed.
- Judges
- AA Omollo
- Legal Topics
- Payment by Instalments, Party and Party Costs, Jurisdiction of Court, Execution of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
James Kaluko Kyalo
Appellant
Julius Mwangangi Mulu
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Payment of Decretal Sum by Instalments
Legal Issues
- 1 Whether the applicant should be granted leave to pay the decretal sum by monthly instalments.
- 2 Whether the proposed instalment amount is reasonable given the applicant's means and the size of the decretal sum.
- 3 Whether the court has jurisdiction to grant the orders sought under the cited statutory provisions.
Ratio Decidendi
The court found that while the applicant is elderly, evidence provided by the respondent (a letter from the Kilifi Land Adjudication Officer) established that the applicant jointly owns substantial land holdings. The applicant did not rebut this evidence. The court considered the applicant's age and means but found the proposed instalment of Kshs 5,000 per month unreasonable, as it would take 125 years to clear the debt. Exercising its discretion, the court allowed payment by instalments but limited this to ten equal monthly payments, with the first due by 28th February 2019 and subsequent payments on the 30th of each month. In default of any instalment, the respondent is at liberty to...
Court Disposition
Application partially allowed.
Orders
- The applicant is allowed to liquidate the decretal sum in ten equal monthly instalments, the first payable on or before 28th February 2019 and thereafter on the 30th of every subsequent month until payment in full.
- In default of any instalment, the respondent is at liberty to execute for any or the whole balance outstanding.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
ELC APPEALNO. 246B OF 2011
IN THE MATTER OF: PARTY & PARTY BILL OF COSTS
JAMES KALUKO KYALO………………APPELLANT/RESPONDENT
-VERSUS-
JULIUS MWANGANGI MULU……….....RESPONDENT/APPLICANT
RULING
1. For determination is the motion dated 19th June 2018 brought under the provisions of Section 1A, 1B 3, 3A & 63 (e) of the Civil Procedure Act. The Respondent is asking the Court for the following orders:
a) Spent
b) Spent
c) That this Honourable Court be pleased to issue to grant leave to the Appellant/Respondent to pay the amount of Kenya Shillings Six Hundred and Twenty Two Thousand Eight Hundred and Sixty Six and Twenty One Cents (Kshs. 622,866. 21) only due to the Applicant by way of monthly instalments of Kenya Shillings Five Thousand (Kshs. 5,000/=) only.
d) That costs of this application be in the cause.
2. The Respondent opposed the application by filing grounds of opposition dated 27th July 2018 setting out the following reasons:
(1) The Application dated 19th June, 2018 is incompetent bad in law and an abuse of the Court process and the same should be struck out with costs.
(2) Pursuant to Article 40 of the Constitution read together with Section 7 of the Sixth Schedule of the Constitution, Transitional And Consequential Provisions, this Honourable Court lacks jurisdiction to grant the orders sought.
(3) The Application is an afterthought designed to frustrate the Respondent from recovering his costs.
3. During the hearing of the application, I asked parties to file affidavits showing means of the Applicant. The Applicant stated that he is 83 years old living on family land which he holds for the benefit of his family members. That he relies on “pesa kwa wazee of Kshs 2000= given through the cash transfer programs from the Government. He urged the Court to allow him liquidate the debt in monthly instalments of Kshs 5000= each.
4. The Respondent on his part swore that the Applicant is a man of means having large parcels of land. He proceeded to annex a letter from the Kilifi Land Adjudication Officer which stated that the Applicant jointly with 4 others own land in the area measuring approximately 145 acres. On being served with this affidavit, the applicant’s counsel sought time to reply but did not file any. The import is that the contents of the Kilifi Land Adjudication Officer’s letter has not been rebuffed.
5. Taking into account the age of the applicant and the track of land he owns, I find his proposal to liquidate the decretal sum which is over Kshs 600,000= in monthly instalments of Kshs 5000= as unreasonable. If he was to be allowed to do so, it will take 125 years which if you add to his 83 gives 208 years. I am yet to hear of any Kenyan or man the world generally to have lived for this long.
6. In light of the circumstances of this case and in exercise of my discretion I will allow the applicant an opportunity to liquidate the decretal sum but in ten (10) equal instalments with the first instalment payable on or before 28. 2.2019 and thereafter on the 30th of every subsequent month till the decree is paid in full. In default of any instalment, the plaintiff is at liberty to execute for any and or the whole balance outstanding. Costs of this application is ordered in the cause.
Dated, signed & delivered at Mombasa this 5th February 2019
A. OMOLLO
JUDGE