Komu v Directline Assurance Company Ltd (Commercial Case E474 of 2025) [2026] SCC 81 (KLR) (8 May 2026) (Ruling)

Komu v Directline Assurance Company Ltd (Commercial Case E474 of 2025) [2026] SCC 81 (KLR) (8 May 2026) (Ruling) Neutral citation: [2026] SCC 81 (KLR) Republic of Kenya In the Small Claims Court at Mombasa Commercial Case E474 of 2025 TN Mwangeka, RM May 8, 2026 Between Nixon Mutinda Komu Claimant and Directline Assurance Company Limited Respondent Ruling 1.The applicant herein filed the instant Notice of Motion dated 15th April 2026 seeking to be allowed to liquidate the decretal sum of Kshs. 1,008,041.49/- by instalments of Ksh. 100,000/- per month. The same is opposed by the Respondent on the grounds that the Applicant has not demonstrated any credible evidence of financial incapacity in the nature of audited accounts, bank statements, pay slips, or asset disclosures and that a mere assertion of hardship is not sufficient. 2.Section 36(1)(a) of the Small Claims Court Act, enables this court to order payment of a judgment debt in a lump sum or in such instalments and at such times as the Court may determine. This provision grants the court discretionary authority to structure payment terms without requiring the parties' consent, aligning with the Act’s objective of delivering expedient and practical justice. 3.I rely and affirm the court’s reasoning in Wamedi v Mwalughongo (Civil Appeal E069 of 2024) [2025] KEHC 7101 (KLR) (30 May 2025) (Judgment) wherein the court stated that installment orders are to be grounded on fairness and should balance the interests of both parties. 4.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 instalments 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 instalments are the best option available. Accordingly, the burden is on the applicant to prove/show that he/she deserves the orders sought”. 5.The court’s power to order payment of the decretal sum in instalments is discretionary; and exercised based on reason. The relevant considerations were aptly captured by the court in Keshvaji Jethabhai & Bros Limited v Saleh Abdulla [1959] EA 260, as follows: - the Court will consider the circumstances under which the debt was contracted, the conduct of the debtor, his financial position, and so forth, and instalments should be directed where the defendant shows his bona fides by offering to pay anything like a fair proportion of his debt at once. 6.In the present case the Applicant states that they have every intention of settling the debt only that they cannot do so in a lumpsum payment of Kshs. 1,008,041.49/-. The Respondent/Claimant retorts that the timing and circumstances of the application suggest an intention to delay or frustrate execution rather than genuine inability to pay. The decree has remained unpaid 9 months since the delivery of judgement despite demand and opportunity to settle. 7.From the evidence on record, indeed nothing has been shown by the Applicant to prove their said financial hardship. Equally, I find the Applicant’s proposal for payment in instalments of Kshs. 100,000/- to be on the lower side. However despite protest by the Respondent/Claimant of payment in instalments, in the interests of justice, this court will allow the application on the following terms: -1.The appellant will pay the decretal sum together with interest and costs in 3 equal monthly instalments of Kshs. 336,013.83/- until payment in full with effect from 5th of June 2026 until payment in full.2.Interest will continue to accrue on any unpaid sum until payment is made in full.3.In default of payment of any instalment, execution to issue. DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE……8TH …. DAY OF……MAY……2026HON. THERESA N. MWANGEKARESIDENT MAGISTRATE/ADJUDICATORIn the presence of;…Ms. Kimuli……… for Claimant;…Mr. Mugo……… for Respondent C/A EstherSIGNED BY/FOR:THE JUDICIARY OF KENYAHON. THERESA N. MWANGEKAMOMBASA SMALL CLAIMS COURTSMALL CLAIMS COURTDATE: 2026-05-08 09:42:50