https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/319

**REPUBLIC OF KENYA** **IN THE CO-OPERATIVE TRIBUNAL AT ELDORET** **TRIBUNAL CASE NO. E036 OF 2021** **(Coram: Hon. J. Mwatsama- Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.)** **DAVID WAINAINA KIHORO…………….CLAIMANT/RESPONDENT** **VERSUS** **JOHN KIHUNYU GITOGO……………….RESPONDENT/APPLICANT** **RULING** 1. The Auctioneer Rosemary W. Mbuthia of T/A Mbusera Auctioneers through an Application dated 19th March, 2026 moved the Tribunal under Rule 9 (a)(b)(c) of the Auctioneers Amendment Rules and Section 3A of the Civil Procedure Act seeking among others: 2. **Spent** 3. **THAT the honourable Court be pleased to grant me or my authorized agent, Police assistance into the premises occupied by JOHN KIHUNYU GITOGO in order to maintain law and order and enable me remove and attach the proclaimed goods as listed in the proclamation and issue a notification of sale for purpose of auctioning to recover the decretal amount totaling to Kshs. 1,047,307.98/= plus other incidental costs of the attachment.** 4. **THAT the officer commanding RUIRU POLICE STATION/SUB COUNTY ADMINISTRATION POLICE OFFICER or an officer under his command in the rank of an inspector do hereby give assistance for the purpose of maintaining Law and Order.** 5. **THAT the cost of the application be borne by the Judgement debtor in any event.** 6. The Application was supported by the annexed Affidavit of Rosemary W. Mbuthia on the grounds: 7. THAT on 4th March 2026, she was issued with warrants of attachment and sale to proceed with attachment against JOHN KIHUNYU GITOHO to recover amount totaling to Kshs. 1,047,307.98/= 8. THAT on 5th March 2026, as directed by the instructing advocate she proceeded to the Defendants premises at KAHAWA SUKARI did a proclamation of attachable assets/goods and served the judgment debtor with a proclamation notice which they retained a copy 9. THAT on 13TH MARCH 2026 at around 9:00 am they proceeded to the Defendants premises ready to remove the attached assets/goods but the judgement debtors denied them entry. 10. THAT on 16th ,18th & 19th March 2026, at around 8.00am they proceeded again to the Judgement Debtors premises ready to cart away the proclaimed goods but once again the judgement debtors denied them entry. 11. THAT her efforts to execute have not been successful, reason being that the judgement debtors have always denied them entry into their premises, defeating their efforts to attach and recover the Decretal amount of Kshs. 1,047,307.98/ plus costs. 12. THAT it is her prayer that the Honourable Court to grant her police assistance into the said premises and that the officer commanding RUIRU POLICE STATION or an officer under his command in the rank of an inspector to give assistance in order to maintain law and order and enable her execute so as to recover the judgement of Kshs. 1,047,307.98/ Plus other incidental costs. 13. On 17th June, 2026 the Advocate for the Decree Holder informed the Tribunal that there was a 30 days Stay of Execution that was supposed to lapse on 28th June, 2026 and they planned to abide by it. On his part, the Advocate for the Judgement Debtor requested the Tribunal that they be given the opportunity to Respond to the Application, as for the Application to be determined without them putting in a response will deny them the right to fair hearing under Article 50 of the Constitution. On 7th July, 2026 this Tribunal gave the Judgement Debtor 5 days to file a Replying Affidavit and on 11th July, 2026 he filed a Replying Affidavit stating among others: 1. THAT as deponed in his earlier supporting Affidavit sworn on 11th March, 2026, the decretal amount arose from a loan advanced to him by his then Sacco which was guaranteed by the Claimant. 2. THAT he subsequently left employment in the year 2020 after a dispute with their common employer and he was not paid his terminal dues, thereby affecting his financial position. 3. THAT by his application dated 11th March 2026, he sought leave of the Honourable Tribunal to liquidate the decretal sum by way of installments of Kshs. 50,000/= by reason of his present financial incapacity. 4. THAT the ruling in respect of that aforesaid application was delivered on 28th May 2026 and it is therefore factually incorrect that there could have been an attempt to access his premises after the date of that ruling and he verily believe that the averments in the Supporting Affidavit of the Auctioneer are untenable as she purports to have been denied access to his premises allegedly an 16,18 and 19th of March 2026. 5. THAT he is willing to settle the decretal sum but is presently financially constrained and unable to pay the entire decretal sum as a lumpsum, reason why he sought leave of the Honourable Tribunal to accommodate him to settle the decretal sum by way of installments. 6. THAT he has made all efforts to secure payment of the decretal sum including sourcing of loan advancements which efforts are yet to fully bear fruits. 7. THAT he humbly beseech the Honourable Tribunal to review its earlier orders and accommodate him to settle the decretal sum by ways of installments of Kshs.70,000/= as he verily believe the intention of the applicant is to embarrass him in his home instead of ensuring payment of the decretal sum. 8. THAT he has not refused to pay and he seeks indulgence of the Honourable Tribunal to review its earlier orders and allow him to settle the decretal sum by installments of Kshs. 70,000/= and the Claimant will not suffer prejudice as the installments are reasonable and demonstrate his good faith. 9. THAT the Auctioneers’ Application therefore lacks in bonafides as there has been no attempt to approach him on settlement of the decretal sum and he verily believe the application is a draconian measure geared at embarrassing him without the intention of securing payment. 10. We have looked at the Application and the Replying Affidavit filed, and the only question remaining for determination is as to whether the Judgement Creditor has exhausted all possible means to satisfy the Decretal sum. **Should the Judgement Debtor be allowed to liquidate the decretal amount by installments?** Order 21 Rule 12 (2) of the *Civil Procedure Rules*, 2010 gives this Honourable Tribunal the discretion to allow payment of the decretal sum by way of installments, stating: - “*After the 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 installments on such terms*.” The issue of installment payment by Judgment Debtor has been considered in previous Applications before the Tribunal. We however give a final opportunity to the Judgement Debtor before Break in Orders are given looking into the following caselaw. *In* ***Keshvaji Jethabhai & Bros Limited v Saleh Abdulla* [1959] EA 260,** theprinciples guiding the court’s discretion to allow the payment of decretal sum by installments were established as follows: 1. The circumstances under which the debt was contracted. 2. The conduct of the debtor. 3. The debtor’s financial position. 4. The bonafides of the debtor in offering to pay a fair proportion of the debt. Similarly, in ***Freight Forwarders Ltd v Elsek & Elsek (K) Ltd* (2012) eKLR**, the Court outlined principles for determining ‘sufficient cause’ as follows: 1. The debtor is unable to pay in lump sum. 2. The debtor can pay by reasonable monthly installments. 3. The application is made in utmost good faith. In ***Diamond Star General Forwarding Ltd v Ambrose D O Rachier* (2018) eKLR** the court held that: “*That my view is an applicant who wishes a court to exercise its discretion and order payment of a decretal sum by way of installments must be very candid with the court. Such an applicant must present to the court sufficient material to show that he/she is a person of no means, that whatever income she or he has is lawfully committed elsewhere. He or she must disclose to the court all his/her means and explain to the court why the proposed installments are the best option available. Accordingly, the burden is on the applicant to prove/show that he/she deserves the orders sought*”. 1. We have considered all the factors at play as guided by the authorities above, including the following: 2. The fact that the Judgement Debtor is willing to pay the Decretal sum through installments. 3. The fact that this Tribunal in the interest of justice in matters of Execution is allowed to do justice to all parties given the circumstances. Consequently, we direct as follows. **Final Orders** 1. Final opportunity granted to the Respondent to repay Decretal sum on or before 30th September, 2026. 2. In default Notice of Motion dated 19th March, 2026 is allowed and without any further direction. 3. Costs in the cause. Ruling signed, dated and delivered *virtually* at **Nairobi** this **30th** day of **July, 2026.** **Hon. J. Mwatsama Chairperson Signed** **30.7.2026** **Hon. Beatrice Sawe Member Signed 30.7.2026** **Hon. Fridah Lotuiya Member Signed 30.7.2026** **Hon. Paul Aol Member Signed 30.7.2026** **Hon. Michael Chesikaw Member Signed 30.7.2026** **Tribunal Clerk Jemimah** Kago Advocate for the Applicant Joseph Gitogo – No appearance