uma & another (Suing on behalf of the Estate of Juma Muchemi - Deceased) v Odongo t/a Classic Guest House (Commercial Suit 45 of 2018) [2026] KEHC 11047 (KLR) (16 July 2026) (Ruling)

uma & another (Suing on behalf of the Estate of Juma Muchemi - Deceased) v Odongo t/a Classic Guest House (Commercial Suit 45 of 2018) [2026] KEHC 11047 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 11047 (KLR) Republic of Kenya In the High Court at Kisumu Commercial Suit 45 of 2018 JM Omido, J July 16, 2026 Between Mary Wanjiku Juma & Joyce Muchemi (Suing on behalf Of The Estate Of Juma Muchemi - Deceased) Plaintiff and Grace Wambui Odongo t/a Classic Guest House Defendant Ruling 1.The Defendant/Judgement Debtor’s notice of motion dated 17th December, 2025 is expressed to be brought under Sections 1A, 1B and 3A of the Civil Procedure Act and all enabling provisions of the law and seeks the following orders:a.[Spent].b.[Spent].c.That this Honourable court be pleased to allow the applicant to settle the decretal sum herein by monthly instalment of Ksh.50,000/- till payment in full.d.That this Honourable court be pleased to make such orders as it may deem fit to make in the circumstance.e.That costs of this application be in the cause. 2.The grounds upon which the motion is premised are that judgement was entered against the Defendant for a sum of Ksh.2.8 million, out of which she has paid Ksh.830,844/-. It is further contended that the Defendant’s business has since closed down, rendering her unable to liquidate the outstanding decretal sum at once. The Defendant also states that she is in poor health and suffers from high blood pressure. 3.On those grounds, it is urged that the application be allowed in the interests of justice. 4.The application is supported by the Defendant’s affidavit sworn on 17th December, 2025 in which she deposes that judgement was entered against her for a sum of Ksh.2.83 million and that, following the judgement, she paid the Plaintiffs Ksh.830,844/-. 5.The Defendant further deposes that her hotel business closed down following the Covid-19 pandemic after she lost customers, and that she is consequently unable to pay the outstanding balance of the decretal sum. 6.The application is further supported by the Defendant’s further affidavit sworn on 10th April, 2026 in which she contends that she has, in good faith, paid the sum of Kshs. 250,000/= to the Plaintiff’s Advocates. In support of that assertion, she has annexed and marked as “GWO-1” copies of the relevant banker’s cheque(s) evidencing the said payment. 7.The application is opposed by the Plaintiffs, who to that end filed a replying affidavit sworn on 27th January, 2026 by Mary Juma, the 1st Plaintiff/Decree Holder herein. 8.The said deponent contends in her affidavit that she is one of the Decree Holders/Respondents, is conversant with the facts of the matter and is duly authorised by her co-Plaintiff to swear the affidavit in opposition to the Defendant’s notice of motion dated 17th December, 2025. 9.She deposes that judgement was entered in favour of the Plaintiffs on 17th January, 2023 for Ksh.2,830,844/- together with costs and interest, and that a decree was subsequently issued on 24th January, 2023. The costs were assessed at Ksh.483,112/-. 10.She states that following the entry of judgement, the Defendant filed an application dated 13th February, 2023 seeking stay of execution pending appeal. On 1st March, 2023, the Court granted a stay on terms that the Defendant pay Ksh.830,844/- within sixty (60) days and secure the balance of the decretal sum by a bank guarantee within the same period, failing which the Plaintiffs would be at liberty to execute. 11.The deponent states that the Defendant subsequently issued a cheque for Ksh.830,844/- on 14th April, 2023 in purported compliance with the said order. Immediately thereafter, however, she filed an application dated 13th April, 2023 seeking review of the orders of 1st March, 2023 so as to permit her to deposit a title document registered in the name of a third party in lieu of the required bank guarantee. The application for review was dismissed with costs on 25th January, 2024. 12.The deponent further contends that the Plaintiffs have made numerous attempts to execute the judgement, all of which have been frustrated by the Defendant through the filing of successive applications, none of which has succeeded. In particular, she states that following the proclamation of the Defendant’s goods, the Defendant filed an application dated 15th March, 2024 seeking to restrain execution on the ground that the proclaimed goods constituted tools of trade and were therefore exempt from attachment. The application was dismissed on 30th September, 2024, with the Defendant being ordered to pay Ksh.25,000/- in costs, which costs, she states, remain unpaid. 13.She further deposes that after the Plaintiffs again instructed auctioneers and the same property was proclaimed, Classic Guest House Limited, a company of which the Defendant is a director, filed objection proceedings by an application dated 3rd December, 2024, claiming ownership of the proclaimed goods. The said objection proceedings were, however, dismissed on 23rd April, 2025. 14.The deponent states that in a further attempt to frustrate the execution process, the said objector filed a miscellaneous application in the Chief Magistrate’s Court at Milimani, being Nairobi MCCCMISC/E752/2025: Alberta Anne Odongo, James Okungu Odongo and Classic Guest Home Limited v Nairobi Connection Services Auctioneers, Mary Juma & Joyce Muchemi (suing on behalf of the Estate of Juma Muchemi) and Grace Wambui Odongo, which application was dismissed on 18th September, 2025. 15.The deponent further states that the Plaintiffs took out a notice to show cause dated 13th June, 2025, which was scheduled for hearing on 19th February, 2026, and expresses the view that the pendency of the said proceedings prompted the Defendant to file the present application. 16.She states that as at 13th March, 2025, the total outstanding decretal sum, as reflected in the warrants of attachment, stood at Ksh.3,251,009/-, and that the Defendant had made no voluntary effort to settle the outstanding amount. She adds that even the sum of Ksh.830,844/- paid in April, 2023 was paid pursuant to a court order granting a stay of execution and was not a voluntary payment towards settlement of the decree. 17.The deponent contends that allowing the present application would result in the Plaintiffs waiting for a further six (6) years to receive payment, in addition to the three (3) years they had already waited to enjoy the fruits of their judgement. She further states that both she and the Defendant are almost octogenarians and that, in the interests of natural justice and fairness, the outstanding debt ought to be settled without further delay. 18.Nevertheless, the deponent states that she is willing to indulge the Defendant and permit settlement of the outstanding decretal sum in four (4) equal monthly instalments commencing in February, 2026 and ending in May, 2026. 19.She consequently prays that the Defendant’s application be dismissed with costs and that an order for her committal to civil jail be issued. In the alternative, she urges the Court to order the Defendant to settle the outstanding decretal sum in four equal and concurrent monthly instalments. 20.The court directed that the application be canvassed by way of written submissions and the parties complied by filing their respective submissions. 21.In her submissions, the Defendant submits that the application dated 17th December, 2025 seeks orders staying the warrant for her arrest and committal to civil jail for non-payment of the balance of the decretal sum, together with leave to settle the outstanding decretal sum by monthly instalments of Ksh.50,000/-. 22.The Defendant submits that the Court has jurisdiction under Order 21 Rule 12 of the Civil Procedure Rules to permit a judgement debtor to pay a decretal sum by instalments, in such manner and on such terms as the Court may deem fit after considering the circumstances of each case. She accordingly urges the Court to exercise its discretion in her favour. 23.She submits that she has demonstrated her willingness to settle the decretal sum and has already paid Ksh.830,844/-, leaving an outstanding balance of approximately Ksh.2,000,000/-. She further states that she has paid, or is willing to pay, a further sum of Ksh.250,000/- as a demonstration of good faith. 24.The Defendant submits that her business was shut down during the Covid-19 pandemic and has not fully recovered from the effects of the pandemic. She contends that the prevailing low level of business and the consequent lack of sufficient income make it impossible for her to settle the outstanding decretal sum in the four instalments proposed by the Plaintiffs. 25.She urges the Court to take judicial notice of the prevailing difficult business environment in the country and to permit her to settle the decretal sum by instalments. She submits that the application has been made in good faith, having regard to the history of the matter and the circumstances in which the rent arrears giving rise to the decree accrued, which circumstances, she contends, were not attributable to the fault of either party. 26.The Defendant relies on Wasike v Gramo Properties Ltd (2024) and Bertha Awuor Kowido v Special Capital Ltd (2021) eKLR, which she submits support the grant of leave to settle decretal sums by instalments, including where financial constraints have been occasioned or aggravated by the effects of the Covid-19 pandemic. 27.In the premises, the Defendant urges the Court to exercise its discretion and allow the application as prayed, or, in the alternative, impose instalments that strike a balance between her proposal and that of the Plaintiffs, thereby enabling her business to continue operating while ensuring that the decretal sum is progressively settled. She submits that such an approach would achieve justice for both parties. 28.On their part, the Plaintiffs oppose the Defendant’s application and submit that the Defendant has approached the Court with unclean hands and in bad faith. They rely on the replying affidavit sworn by Mary Juma on 27th January, 2026 and point out that the Defendant did not file a further affidavit to controvert the matters deposed to therein. 29.The Plaintiffs submit that judgement was entered on 17th January, 2023 for Ksh.2,830,844/- together with costs and interest, and a decree was issued on 24th January, 2023. Costs were subsequently awarded in the sum of Ksh.483,112/-. 30.They state that following the entry of judgement, the Defendant sought a stay of execution pending appeal. On 1st March, 2023, the Court granted a stay on terms that she pay Ksh.830,844/- within sixty (60) days and secure the balance of the decretal sum by a bank guarantee within the same period, failing which the Plaintiffs would be at liberty to execute. 31.The Plaintiffs submit that the payment of Ksh.830,844/- on 14th April, 2023 was made pursuant to the said court order and was therefore not a voluntary payment or an act of good faith as now alleged by the Defendant. 32.They further state that immediately after making the payment, the Defendant sought a review of the stay orders to enable her to deposit a title document registered in the name of a third party in lieu of the bank guarantee. That application was dismissed with costs on 25th January, 2024, with the result that the conditions upon which the stay had been granted were not fulfilled and the stay consequently lapsed. 33.The Plaintiffs further submit that their subsequent attempts to execute the decree have repeatedly been frustrated by the Defendant through successive applications, all of which have been unsuccessful. They refer to the Defendant’s application dated 15th March, 2024 seeking to restrain execution on the ground that the proclaimed goods constituted tools of trade. The application was dismissed on 30th September, 2024, with the Defendant being ordered to pay Ksh.25,000/- in costs, which costs remain unpaid. 34.They further submit that when the same property was subsequently proclaimed, Classic Guest House Limited, a company of which the Defendant is a director, instituted objection proceedings claiming ownership of the goods. The objection proceedings, filed by an application dated 3rd December, 2024, were dismissed on 23rd April, 2025. 35.The Plaintiffs state that the said objector thereafter filed a further Miscellaneous Application in the Milimani Chief Magistrate’s Court, being Nairobi MCCCMISC/E752/2025: Alberta Anne Odongo, James Okungu Odongo and Classic Guest Home Limited v Nairobi Connection Services Auctioneers, Mary Juma & Joyce Muchemi (suing on behalf of the Estate of Juma Muchemi) and Grace Wambui Odongo, which was dismissed on 18th September, 2025. 36.The Plaintiffs submit that the notice to show cause dated 13th June, 2025 was what prompted the Defendant to file the present application, in which she obtained interim orders. They reiterate that even the payment of Ksh.830,844/- made in April, 2023 was made pursuant to a court order and that the Defendant has never made any voluntary effort to settle the outstanding decree. 37.They further contend that the Defendant’s reliance on the effects of the Covid-19 pandemic is untenable and is merely intended to delay the enjoyment of the fruits of the judgement. They submit that the Defendant’s ability to raise Ksh.830,844/- when required, and subsequently to pay a further Ksh.250,000/-, demonstrates that she is capable of raising substantial sums when necessary. 38.The Plaintiffs state that as at 13th March, 2025, the total outstanding sum reflected in the warrants of attachment stood at Ksh.3,251,009/- and that the Defendant has made no meaningful effort to settle the same. 39.They submit that allowing the proposed monthly payment of Ksh.50,000/- would result in the Decree Holders waiting for a further six (6) years to recover the decretal sum, in addition to the more than three (3) years they have already waited to enjoy the fruits of their judgement. 40.They further submit that both the Defendant and the 1st Plaintiff are almost octogenarians and that, in the interests of natural justice and fairness, the outstanding debt ought to be settled without further delay. 41.They note that the suit was initially filed in 2014 as Nairobi ELC Civil Suit No. 378 of 2014 before being transferred to Kisumu as Commercial HCCC No. 45 of 2018, and that the original Plaintiff died before the conclusion of the suit. 42.On the applicable law, the Plaintiffs rely on Rajabali Alidina v Rentulla Alidina [1961] E.A. 565, which sets out the matters to be considered in an application for payment of a decree by instalments, namely: the circumstances in which the debt was contracted; the conduct of the debtor; the debtor’s financial position; and the debtor’s bona fides in offering to pay a fair proportion of the debt at once. 43.The Plaintiffs submit that when the parties appeared before the Court on 12th February, 2026, the Defendant was advised to consider making a payment of Ksh.250,000/-. They acknowledge that a banker’s cheque for that amount was subsequently received on 10th April, 2026, but contend that the Defendant’s ability to raise such sums when required demonstrates that she is not as financially constrained as alleged. 44.They further rely on Shah v Haria & Another [2025] KEHC 15213 (KLR) and submit that the central consideration in an application for payment by instalments is the balancing of the respective equities and interests of the Plaintiffs and the Defendant in the interests of justice. They contend that where the proposed periodic payments would take many years to complete, or where the Applicant fails to meet the established threshold for settlement by instalments, the application ought to fail. 45.In conclusion, the Plaintiffs submit that the Defendant has made a mockery of the decree and does not deserve the orders sought. Nevertheless, they state that they are willing to indulge her by permitting settlement of the outstanding decretal sum in four (4) equal and concurrent monthly instalments from the date of the ruling. 46.They accordingly pray that the Defendant’s application be dismissed with costs. In the alternative, they urge the Court to order the Defendant to settle the outstanding decretal sum in four equal and concurrent monthly instalments. 47.In her rejoinder by way of further submissions, the Defendant submits that after filing the application and her initial submissions, she proceeded to pay a further sum of Ksh.250,000/- towards liquidation of the decretal sum. She states that the payment was made by way of a banker’s cheque and that evidence of the payment has been exhibited in the further supporting affidavit filed in Court. She accordingly urges the Court to allow the application. 48.I have considered the application, the affidavits filed in support and in opposition thereto, the respective submissions by the parties and the authorities cited. In my view, the issues that arise for determination are:1.Whether the Defendant has satisfied the legal and evidential threshold for the grant of leave to liquidate the decretal sum by monthly instalments of Ksh.50,000/-.2.Whether, in the circumstances of the case, the Court should exercise its discretion to permit payment of the outstanding decretal sum by instalments on terms other than those proposed by the Defendant.3.Finally, there is the issue of the costs of the application. 49.The jurisdiction of the Court to permit payment of a decretal amount by instalments is not in dispute. Order 21 Rule 12 of the Civil Procedure Rules empowers the Court, in appropriate circumstances, to allow a Judgment Debtor to pay the decretal amount by instalments. The discretion is, however, a judicial discretion and must be exercised judiciously, upon consideration of the circumstances of each case and the competing interests of the decree holder and the judgment debtor. 50.The principles applicable in the exercise of that discretion were set out in Rajabali Alidina v Rentulla Alidina [1961] E.A. 565, where the Court identified the circumstances under which the debt was contracted, the conduct of the debtor, the debtor’s financial position and the debtor’s bona fides in offering to pay a fair proportion of the debt at once as relevant considerations. 51.The Defendant’s case is essentially that she is unable to settle the decretal sum at once because her hotel business was adversely affected by the Covid-19 pandemic and has not recovered. She further contends that the prevailing business environment has made it difficult for her to raise sufficient funds to settle the decree. She proposes to pay Ksh.50,000/- monthly. 52.I have considered that explanation. I have also considered the history of the matter. The judgement was entered on 17th January, 2023. Following the judgement, the Defendant obtained a conditional stay of execution on 1st March, 2023. The conditions included the payment of Ksh.830,844/- within sixty days and the provision of security for the balance of the decretal sum by way of a bank guarantee. 53.Although the Defendant paid the sum of Ksh.830,844/-, the other condition was not fulfilled. Her subsequent application seeking a review of the terms of the stay was dismissed with costs on 25th January, 2024. 54.Thereafter, the Plaintiffs’ efforts to realise the fruits of their judgement were met with further applications. The Defendant sought to restrain execution on the basis that the proclaimed goods constituted tools of trade. That application was dismissed. When the same property was subsequently proclaimed, objection proceedings were instituted by Classic Guest House Limited, a company of which the Defendant is a director. Those proceedings were also unsuccessful. A further application filed before the Chief Magistrate’s Court was similarly dismissed. 55.I do not, by making the foregoing observations, suggest that a Judgement Debtor is barred from approaching the Court merely because she has previously filed applications relating to execution. The point, however, is that the conduct of a Judgement Debtor is a material consideration in determining whether the discretion to allow payment by instalments should be exercised in her favour. In the present case, the history demonstrates that the Plaintiffs have been unable to enjoy the fruits of their judgement for a considerable period of time. 56.The Defendant’s proposed payment of Ksh.50,000/- per month must also be considered against the outstanding decretal sum. The Plaintiffs state, and the Defendant has not effectively controverted, that the amount outstanding as at 13th March, 2025 stood at Ksh.3,251,009/-. At the proposed rate of Ksh.50,000/- per month, payment would take several years. The proposal would therefore occasion a further and considerable delay in the satisfaction of a decree that was issued more than three years before the filing of the present application. 57.The Defendant has also relied upon the effects of the Covid-19 pandemic and the prevailing economic environment. Those circumstances may, in an appropriate case, constitute relevant considerations. However, the mere assertion of financial difficulty, without sufficient evidence demonstrating the extent of the difficulty and its relationship to the proposed mode of payment, cannot, by itself, entitle a Judgment Debtor to an order for payment over an extended period of time. 58.In the present case, the Defendant has not placed before the Court sufficient material to enable it to objectively assess her current financial position or to determine whether the proposed sum of Ksh.50,000/- per month represents a fair proportion of the debt which she is capable of paying. The Court is therefore unable to conclude that the proposal made is a fair and reasonable one in the circumstances. 59.I have not overlooked the fact that the Defendant paid Ksh.830,844/- pursuant to the conditional stay order and has since paid a further Ksh.250,000/- by banker’s cheque. The latter payment is undoubtedly a positive development and demonstrates some willingness to reduce the outstanding liability. It is, however, necessary to consider the payment in the context of the entire history of the matter and the amount that remains outstanding. The payment does not, in my view, establish that the Defendant has satisfied the threshold for the grant of the specific instalment arrangement which she seeks. 60.I therefore find that the Defendant has not demonstrated sufficient grounds for the Court to allow her to liquidate the decretal sum at the rate of Ksh.50,000/- per month. The application, to that extent, is without merit. 61.That conclusion does not, however, bring the matter to an end. The Court must balance the interests of the Judgement Creditor in enjoying the fruits of the judgement with the interests of the Judgement Debtor in being afforded a reasonable opportunity to settle the decree without being subjected to disproportionate hardship. The Plaintiffs themselves have indicated that, notwithstanding their opposition to the application, they are willing to accommodate the Defendant by permitting the outstanding decretal sum to be paid in four equal monthly instalments. 62.That concession is a reasonable and equitable basis upon which to bring the matter to a conclusion. It takes into account the considerable period that the Plaintiffs have waited to realise the fruits of their judgement, the history of the execution proceedings, the payments already made by the Defendant and the Defendant’s expressed inability to settle the entire decretal sum at once. 63.Since the application was filed some time ago and the parties have, in the intervening period, engaged in the present proceedings, it would not be just to require the first instalment to be paid immediately upon delivery of this ruling. The Court will therefore adopt the proposal of the Plaintiffs but adjust the commencement date to take account of the passage of time. 64.Accordingly, the outstanding decretal sum shall be paid in four (4) equal monthly instalments, the first instalment falling due on 30th July, 2026 and the remaining three instalments falling due on the 30th day of each succeeding month until payment in full. 65.For avoidance of doubt, the instalment arrangement herein shall apply to the outstanding decretal sum as at the date of payment, after taking into account all sums already paid by the Defendant, including the sum of Ksh.250,000/- paid by banker’s cheque, and any other payments duly credited towards the decree. 66.That is not to say that the Defendant has succeeded in the application as presented. She has not. That being the position, the Plaintiffs are entitled to the costs thereof. Taking into account their willingness to accommodate the Defendant and the ultimate order permitting payment by instalments, I assess the costs of the application at Ksh.5,000/-. The said sum shall form part of the outstanding decretal sum and shall be payable together with the decretal amount. 67.In the result, the although the Defendant’s notice of motion dated 17th December, 2025 is lacks merit, I will nevertheless, in the exercise of the Court’s discretion and in accordance with the accommodation offered by the Plaintiffs, issue the following orders:a.The Defendant shall settle the outstanding decretal sum in four (4) equal monthly instalments.b.The first instalment shall be paid on or before 30th July, 2026.c.The remaining three instalments shall be paid on or before the 30th day of each succeeding month until payment in full.d.The Defendant shall pay the costs of the application assessed at Ksh.5,000/-, which amount shall form part of the outstanding decretal sum.e.In default of any instalment, the Plaintiffs shall be at liberty to pursue execution for the outstanding balance in accordance with the law, without further reference to the court. 68.This file is hereby closed. DELIVERED (VIRTUALLY), DATED & SIGNED THIS 16TH DAY OF JULY, 2026.JOE M. OMIDOJUDGEFor The Plaintiffs: Ms. Githii.For The Defendant: Ms. Onyango For Mr. Yogo.Court Assistants: Mr. Ngoge & Mr. Juma.