Kisoya v Maingi (Civil Case 198 of 2019) [2026] KEMC 418 (KLR) (21 July 2026) (Ruling)

 **REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE'S COURT AT MAKINDU** **CIVIL CASE NO 198 OF 2019** **COSMUS MUIA KISOYA…………........................................................PLAINTIFF/RESPONDENT** **VERSUS** **CELINA KARABAI MAINGI….............................................................DEFENDANT/APPLICANT** **RULING** **THE APPLICATION** The application for determination is dated 16/3/2026. The same was filed by the defendant/judgment debtor mainly pursuant to Order 22 rule 22 of the Civil Procedure Rules. The other prayers have been spent save the following: 1. That the Honourable court to grant an order for the defendant to settle the balance of the decretal sum by way of equal monthly instalments of Ksh. 50,000/= until settlement in full; 2. That the Honourable court be pleased to stay the execution of the judgment entered on 27th February, 2023 until the decretal sum is fully settled as per the order of settlement in instalments; 3. That costs be in the cause. The application is supported by an affidavit sworn by the defendant and is premised on the following general grounds: 1. The defendant’s insurer paid the sum of Ksh. 3,000,000/= and advised her to settle the balance through her own finances; 2. The plaintiff has already demanded settlement of the balance of the decretal sum in default of which they may auction the defendant’s assets or commit her to civil jail; 3. The defendant is financially constrained by numerous loan obligations and a struggling business environment and cannot afford to settle the balance of the decretal sum by lump sum payment; 4. It is in the interest of justice and promotion of a just and conclusive resolution that the execution be stayed and the defendant be allowed to pay by instalments as proposed; 5. The court has unfettered discretion to vary the terms of settlement of the decree and grant interlocutory relief on terms that are fair and just in the circumstances; 6. If the orders sought are denied, the defendant will suffer irreparably since she cannot settle the balance of the decretal sum in a lump sum and the plaintiff may auction her property or commit her to civil jail; 7. It is just that execution of the decree be stayed as instalment payments are made. In the affidavit in support of the application the defendant reiterated the grounds on the face of the application and annexed documents in support of the application. **THE PLAINTIFF'S RESPONSE** The plaintiff opposed the application by filing a Replying affidavit. He opposed the application on the following grounds: 1. That the application is misconceived, is incompetent and is an abuse of the court's process; 2. The defendant has declined to settle the balance of the decretal sum and attempts to negotiate who not born any fruits; 3. The defendant lacks good faith and has not made any attempts to settle the decretal sum; 4. The proposal of Ksh. 50,000/= per month is unreasonable, unjust and oppressive as it would take over five years to settle the balance together with costs and interest; 5. The defendant has not demonstrated sufficient cause to warrant the grant of stay of execution; 6. The alleged financial constraints and loan obligations are not exceptional circumstances and do not justify depriving the plaintiff of enjoying the fruits of his judgment; 7. The loan statement does not demonstrate inability to settle the decretal sum; 8. There has been inordinate delay in filing the application and the application is intended to delay or frustrate the execution process; 9. The plaintiff will suffer prejudice if the orders are granted whereas the defendant will not suffer irreparable loss if the decretal sum is settled. **THE DEFENDANT/APPLICANT'S SUBMISSIONS** In the written submissions filed on behalf of the defendant, the defendant relied on the grounds upon which the application was premised and submitted that she is currently burdened with numerous loan obligations. The defendant relied on the authority of ***Diamond Star General Trading LLC v Ambrose D O******Rachier carrying on business as Rachier & Amollo Advocates [2018] KEHC 9034 (KLR)****.* The defendant urged the court to allow the application. **THE PLAINTIFF/RESPONDENT'S SUBMISSIONS** The plaintiff relied on his response and submitted that the defendant lacked good faith in settling the decretal sum. That she had never paid anything towards settlement. The plaintiff argued that the defendant failed to provide full disclosure of her financial status and also failed to demonstrate inability to raise funds through sell of assets or alternative funding. That the defendant owns assets which were proclaimed before. The plaintiff relied on the authorities of ***Synergy Industrial Credit Ltd v Oxyplus International Ltd & 2 others [2022] KEHC 12940 (KLR)*** and ***Petro Oil Kenya Limited v Omar Transmotors Limited [2003] eKLR.*** **MAIN ISSUES FOR DETERMINATION** In my opinion, the main issues for determination are as follows: 1. Whether the defendant should be allowed to defray the decretal sum by instalments; 2. If so, whether an order for instalments of Ksh. 50,000/= per month is fair and reasonable; 3. Who should bear the costs of this application? **ANALYSIS AND DETERMINATION** 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 as 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) Order 22 rule 22(3) of the Civil Procedure Rules provides that: ***"Before making an order to stay execution or for the restitution of property or the discharge of the judgment-debtor the court may require such security from, or impose such conditions upon, the judgment-debtor as it thinks fit".*** The defendant did not invoke the appropriate provisions but the failure is not fatal to the application. From the above provisions, 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......"*** 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; and 4. The application is made without undue delay. Judgement herein was delivered on 27/2/2023. The defendant was present or rather represented when the judgment was delivered. The decree herein was issued on 7/1/2025. There have been previous attempts at execution. The defendant did not bother to file such an application until a further attempt at execution was made. The court wonders why the judgment debtor did not file the application in good time. Did she just discover that she was financially incapable of settling the decretal sum at once? I agree that the application was filed quite late in the day and may be termed as an afterthought. The debt herein dates back to 2023. The defendant has never paid anything towards settlement of the decretal sum. At one time, the defendant transferred ownership of one of her motor vehicles to a third party in a clear attempt to avoid execution. The instant application was filed in March, 2026. If the defendant was acting in good faith and willing to settle the decretal sum as alleged, she would have made some payments to the plaintiff even as she waits for determination of her application. The judgment debtor appears to be enjoying the delay. I have further considered the proposal by the defendant. The balance of the decretal sum is in excess of Ksh. 2 Million and the amount continues to accrue interest. If the defendant is allowed to pay by instalments as prayed, it will take over three years to settle the decretal sum. In my view, the proposal is unreasonable. I have already indicated that the defendant has not shown any willingness to settle the decretal sum. The defendant alleges that she is facing financial constraints and hardships. No sufficient material has been furnished by the defendant to show that indeed she is facing financial constraints. The record indicates and it has not been denied that the defendant owns assets. The alleged loan appears to have been advanced after the judgment. The loan is the defendant’s own obligation which should not be visited upon the plaintiff. It is also the defendant’s legal obligation to settle the decretal sum. The defendant has not exhibited sufficient financial records to show that she is not in a position to pay the decretal sum as a lump sum. **DISPOSITION** In view of the foregoing, I find that the application is devoid of merit. However, I will exercise my discretion and make the following orders: 1. The defendant/judgment debtor shall pay to the plaintiff a sum of **Ksh. 500,000/=** on or before the 4th day of August, 2026; 2. The defendant to liquidate the balance of the decretal sum after payment of the above sum in monthly instalments of **NOT LESS** than **Ksh. 100,000/=** with effect from 10th September, 2026 and thereafter on or before the 10th day of every subsequent month until payment in full; 3. A stay of execution shall be granted as along as the judgment debtor complies with the orders of the court; 4. In default of payment of the initial or any one instalment, the decree holder shall be at liberty to execute for the entire balance; 5. Costs of this application be borne by the defendant/judgment debtor. **DATED, SIGNED AND DELIVERED VIA CTS THIS 21ST DAY OF JULY, 2026.** **Y.A SHIKANDA** **SENIOR PRINCIPAL MAGISTRATE.**