[2025] KEHC 3983 (KLR)

Langat v Bank of Africa Kenya Ltd & another (Civil Suit E007 of 2022) [2025] KEHC 3983 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KEHC 3983 (KLR)

Republic of Kenya

In the High Court at Kericho

Civil Suit E007 of 2022

JK Sergon, J

March 27, 2025

Between

Charles Kipngeno Langat

Plaintiff

and

Bank of Africa Kenya Ltd

1st Defendant

Philips International Auctioneers

2nd Defendant

Ruling

1. The application coming up for determination is a notice of motion dated 30th January, 2025 seeking the following orders;(i)Spent(ii)That the firm of M/S Mitey & Associates be granted leave to come on record as Advocates for the Plaintiff/Applicant herein in place of Messrs. A.H. Malik & Co. Advocates.(iii)Spent(iv)That the Plaintiff/Applicant be allowed to liquidate the amount due from himself to the 1st Defendant/Respondent pursuant to the judgment entered herein by way of monthly installments of Kshs.150,000/- until payment in full.(v)That costs of this Application be provided for.

2. The application is supported by grounds on the face of it and the supporting affidavit of the Charles Kipngeno Langat Plaintiff/Applicant herein.

3. He avers that judgment was entered in this matter against myself in the sum of Kshs. 57, 605,234/- plus costs and interest.

4. He avers that he had previously instructed the firm of A.H Malik & Co.Advocates and now wish to appoint the firm of Mitey & Associates Advocates.

5. He avers that he was informed by Mitey & Associates Advocates the incoming advocates, which information he believes to be true that once a judgment has been entered one has to seek for leave to come on record, which application he prays be allowed.

6. He avers that he is apprehensive that the Defendant/Respondent may at any time commence execution proceedings exposing him to irreparable loss and prejudice.

7. He avers that he is desirous and willing to settle the Decretal Sum however due to financial constraints owing to the current adverse economic climate and the recent renovations carried out at Tabsview Apartments, he cannot do so in lump sum but that he was ready to pay in monthly instalments.

8. He avers that he previously worked as a road contractor but was constrained to sell off all work machinery, tractors and /or caterpillar rollers in a bid to offset part of the loan sometime in the year 2022.

9. He avers that the only current source of income is the rental income from Tabsview apartments, which property has been under renovations from the damage caused by a heavy rainfall in 2020 and is yet to be fully occupied.

10. He avers that he is desirous and willing to settle the decretal sum as from 15th February,2025 being proceeds from the current tenants at the said apartment as follows;a.Kshs.150,000/- every month as from 15th February, 2025- 15th June,2025b.Kshs 200,000/- every month as from 15th July,2025 to 15th January,2026c.Kshs 300,000/- every month as from 1s" February onwardsd.That in the event that there is an increment in the number of tenants he will raise the said amounts to Kshs.300,000/- per month until payment in full.

11. He avers that he is still pursuing a claim with ICEA Lions Group with regard to the suit property which matter is with the arbitrator.

12. He avers that after the completion of the said arbitration, | am in a position to get a sum of approximately Kshs 40,000,000/- which amounts, he undertakes to clear the balance remaining at the time directly to the 1st Defendant/ Respondent once the same is settled by the said insurance company.

13. He avers that it is just and fair that the execution be stayed and he be allowed to pay the said amount by instalments.

14. He avers that this application is brought in good faith and will not occasion any prejudice to the 1 Defendant/Respondent.

15. The 1st Defendant/Respondent filed a replying affidavit in response to the application sworn by Victor Keitany working with the 1st Respondent as a Senior Recoveries Officer, hence, well conversant with the facts of this case and duly authorized and competent to swear this Affidavit on its behalf.

16. He avers that in a judgment delivered by this Honourable Court on 7th November, 2024, the Court dismissed the Applicant's suit with costs and allowed the Respondent's counterclaim condemning the Applicant to pay a sum of Kshs 57,605,234/= and the Applicant now seeks to liquidate this decretal sum to settle the decretal sum in instalments as proposed in the affidavit in support.

17. He avers that whereas this Honourable Court has the discretion, pursuant to Order 21 Rule 12 of the Civil Procedure Rules to order settlement of decretal sum in instalments, the Applicant must demonstrate bona fide by arranging prompt payment of a fair proportion of the debt. Additionally, the discretion of the court allowing payment of the decretal sum in instalments should not prejudice the decree holder as was held in Keshavji Jethabhai & Bothers Limited -vs- Saleh Abdulla [1959]

18. He avers that having reviewed the proposal suggested by the Applicants, it is clear that it is mala fides, lacks sincerity and smacks contempt on the face of it. The Applicant suggests liquidating a Kshs 57,605,234/= debt in monthly instalments of at least Kshs 150,000 /= per month, which means that it would take at least 30 years to fully pay. The instalment proposed is not only unreasonable, contemptuous but also commercially untenable. He pointed out that it is crucial to emphasize that since the institution of these proceedings in 2022, the applicant has not paid a single dime towards the loan. He reiterated that the proposal is oppressive, an affront to the principles of fairness and justice and a blatant attempt to prevent the 1st Respondent from enjoying the fruits of its judgment. He contends that The Applicant has not met the threshold set out in Freight Forwarders Ltd vs Elsek & Elsek (K) Ltd (2012) eKLR, regarding what amounts to sufficient cause.

19. He contends that the Applicant has not demonstrated or tendered an explanation to this Honourable Court as to why he is unable to pay the entire decretal sum in full and therefore urged this court to have the proposal declined and the 1st Respondent be allowed to execute for the entire decretal sum.

20. He contends that in the disclosed circumstances, the application herein is clearly frivolous, misconceived and meant to achieve an ulterior purpose. It has been filed in bad faith and an abuse of the Court process and therefore ought to be dismissed with costs.

21. The 2nd Defendant/Respondent objected to the Application dated 30th January 2025 and filed grounds of opposition on the following grounds:-(i)The Application is frivolous, vexatious, oppressive and an abuse of the court process.(ii)That the Application is fatally defective.(iii)That the Plaintiff can not enjoy any equitable remedies in law.(iv)That the Application has no basis in law.(v)That the Applicant offer is not practical in law or in Commercial law or line.

22. The matter came up for inter partes hearing and this court directed the parties to file submission. However, at the time of writing this ruling the parties had not filed their submissions on the Case Tracking System, therefore this court considered the material on the record to arrive at a fair and just determination in the dispute between the parties.

23. I have considered the pleadings by both parties and find that the issue (s) for determination are whether the firm of M/S Mitey & Associates be granted leave to come on record as advocates for the Plaintiff/Applicant herein in place of Messrs. A.H. Malik & Co. Advocates and whether the Plaintiff/Applicant be allowed to liquidate the amount due from himself to the 1st Defendant/Respondent pursuant to the judgment entered herein by way of monthly installments of Kshs.150,000/- until payment in full.

24. On the issue as to whether the firm of M/S Mitey & Associates can be granted leave to come on record as advocates for the Plaintiff/Applicant herein in place of Messrs. A.H. Malik & Co. Advocates, this court finds that the same is unopposed and therefore grants this prayer.

25. On the issue as to whether the Plaintiff/Applicant be allowed to liquidate the amount due from himself to the 1st Defendant/Respondent pursuant to the judgment entered herein by way of monthly installments of Kshs.150,000/- until payment in full. On one part the Plaintiff/Applicant argues that whereas he is desirous and willing to settle the Decretal Sum however due to financial constraints owing to the current adverse economic climate and the recent renovations carried out at Tabsview Apartments, he cannot do so in lump sum but that he was ready to pay in monthly instalments. The Defendant/Respondent while conceding that has the discretion, pursuant to Order 21 Rule 12 of the Civil Procedure Rules to order settlement of decretal sum in instalments, the Applicant must demonstrate bona fide by arranging prompt payment of a fair proportion of the debt. Additionally, the discretion of the court allowing payment of the decretal sum in instalments should not prejudice the decree holder. Order 21 rule 12 (1) and (2) of the Civil Procedure Rules provides as follows: -1. Where and in so far as a decree is for the payment of money, the court may for any sufficient reason at the time of passing the decree order that payment of the amount decree shall be postponed or shall be made by installments, with or without interest, notwithstanding anything contained in the contract under which the money is payable.2. 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 installments 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.” In view of the above, under Order 21 rule 12 (2) the court has power and discretion to order payment of the decretal sum in instalments on application by the judgment-debtor with or without the consent of the decree holder. The judgment-debtor however has to show sufficient cause as to why he should be allowed to pay the decretal sum in instalments and/or why the payments should be postponed. The court’s discretion to order payment in instalments and/or on such terms it deems fit must be exercised judiciously having regard to the facts and circumstances of each individual case. In the instant case it is this court’s finding that the Plaintiff/Applicant’s financial constraints notwithstanding, he remains indebted to the Defendant/Respondent herein and the parties executed a charge which is deemed to be binding contract between the parties, the Plaintiff/Applicant is in breach of the said instrument and therefore this court should not be invited to interfere with the contractual obligations of the parties

26. The upshot is that the notice of motion dated 30th January, 2025 is partially allowed and leave is hereby granted to the firm of M/S Mitey & Associates to come on record as advocates for the Plaintiff/Applicant herein in place of Messrs. A.H. Malik & Co. Advocates with no orders as to costs.

DELIVERED, SIGNED AND DATED AT KERICHO THIS 27TH DAY OF MARCH 2025. ………………………………J.K. SERGONJUDGEIn the Presence of:-C/Assistant – RutohMwangi Kang’u for 1st Defendant/RespondentMiss Mbwu holding brief for Mitei for Applicant