[2014] KEHC 936 (KLR)
The court found that while the applicant faces financial and medical hardship, the proposed installment of KShs.4,000 per month was unreasonably low and would unduly delay satisfaction of the respondent's judgment. The respondent is entitled to timely payment of costs, and the court must balance the interests of...
Source-derived case information.
- Citation
- [2014] KEHC 936 (KLR)
- Parties
- Appellant: Mary Marigu Njuguna; Respondent: Wilfred Mbogo M'Mbui
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 120 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Application for Payment of Decretal Amount by Installments
- Outcome
- Application partly allowed.
- Judges
- FN Muchemi
- Legal Topics
- Payment by Installments, Decretal Amount, Execution of Judgment, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Marigu Njuguna
Appellant
Wilfred Mbogo M'Mbui
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Payment of Decretal Amount by Installments
Legal Issues
- 1 Whether the applicant should be allowed to pay the decretal amount in monthly installments of KShs.4,000 due to financial and medical hardship.
- 2 Whether the respondent's right to timely payment of costs outweighs the applicant's financial constraints.
Ratio Decidendi
The court found that while the applicant faces financial and medical hardship, the proposed installment of KShs.4,000 per month was unreasonably low and would unduly delay satisfaction of the respondent's judgment. The respondent is entitled to timely payment of costs, and the court must balance the interests of both parties. The court exercised its discretion to allow payment by installments but set the amount at KShs.20,000 per month, finding this to be a fair compromise that considers the applicant's constraints without prejudicing the respondent's rights. In default of payment, execution may proceed.
Court Disposition
Application partly allowed.
Orders
- Payment of the decretal amount to be made in monthly installments of KShs.20,000 with effect from 30th November 2014 until the whole amount is cleared.
- In default of payment, execution to issue.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CIVIL APPEAL CASE NO. 120 OF 2010
MARY MARIGU NJUGUNA..................... APPELLANT/APPLICANT
VERSUS
WILFRED MBOGO M'MBUI.................................. RESPONDENT
(An Appeal from the Order of D. MOCHACHE Chairperson issued in Embu Business Premises Rent Tribunal Case No. 21 of 2008 on 16th November, 2010)
R U L I N G
This is a ruling on the application dated the 10th September 2014 seeking for orders that the applicant be allowed to pay the decretal amount in installments of Shs.4,000/= per month until the whole is cleared. The applicant was represented by Mr. Eddie Njiru who argued the application on her behalf. In her affidavit the applicant states that she is sickly and is incurring hefty medical bills and cannot therefore afford to pay the decretal amount in one installment. She says that she has already paid Shs.23,000/= out of the total decretal amount owing of Shs.95,753=.
The application was opposed by the respondent who was represented by Mr. Joe Kathungu advocate. Relying on the grounds of opposition filed on 3/10/2014, Mr. Kathungu submitted that the matter was settled by consent of the parties in October 2013 but the applicant has made no effort to pay the decretal amount save for Sh.8,000/= which was paid a day before the hearing of this application. It was argued that payment of the decretal amount in installments of Shs.4,000/= will take a long time to clear the balance. The offer was not acceptable to the respondent whose medical letter attached to her application was not signed by the doctor.
On perusal of the medical report attached to the application, I find that it bears an official stamp of a medical officer in-charge of Kimbimbi hospital but it is not signed by a doctor. The report bears the letterhead of the hospital and was stamped on 18/8/2014. With the letterhead and the official stamp, the applicant may be given the benefit of doubt. However, her health condition must be weighed against the right for costs awarded by the court on disposal of the appeal.
The record of the court shows the consent by the parties recorded on the 17/9/2013 for costs amounting to Shs.93,200/=. The amount as at 17/10/2013 was Shs.95,573/= which has continued to attract interest. The auctioneer has already attached the property of the applicant which is said to be valued at Shs.1,500,000/=. A great part of the amount of Shs.23,000/= paid by the applicant is said to have gone towards the auctioneers fees. This means the decretal amount has reduced by very little amount which Mr. Kathungu says is only Kshs.8,000/=.
I have carefully considered the arguments of the parties. I am in agreement with the respondent that payment of the amount in installments of Shs.4,000/= will take a long time to clear. It will in fact take more than two years.
The respondent is entitled to his costs and keeping the money for over two years will not be fair to him. It is not possible for him to put the money in any practical use when he receives it in those small amounts. After all, he has already incurred costs in the appeal. I find the offer not reasonable and just to the respondent.
The court declines to allow the application in the terms proposed. However, considering the financial constrains of the applicant, I will allow payment in installments of KShs.20,000/= per month with effect from 30th November 2014 and thereafter at the end of each consecutive month until the whole amount is cleared and in default, execution to issue.
Costs of this application to the judgment debtor.
DELIVERED, SIGNED AND DATED AT EMBU THIS 27TH DAY OF NOVEMBER, 2014.
F. MUCHEMI
JUDGE
In the presence of:-
Mr. Kathungu for the Respondent
F. MUCHEMI
JUDGE