Mathiu v Kiende (Civil Appeal E028 of 2024) [2026] KEHC 6909 (KLR) (21 May 2026) (Ruling)

Mathiu v Kiende (Civil Appeal E028 of 2024) [2026] KEHC 6909 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEHC 6909 (KLR) Republic of Kenya In the High Court at Meru Civil Appeal E028 of 2024 SM Githinji, J May 21, 2026 Between Simon Kinyua Mathiu Appellant and Mwiti Mary Kiende Respondent Ruling 1.For determination is the Notice of Motion dated 23/2/2026 under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 51 of the Civil Procedure Rules and Article 159 (2) of the Constitution, seeking that:1.Spent.2.The Honourable Court be pleased to order the release of the balance of the decretal sum of Kenya Shillings Seven Hundred Thousand (Kshs. 700,000/=) to the Applicant’s Advocates, Kiautha Arithi & Co. Advocates, being the sum deposited as security in an escrow account in the joint names of the advocates for the parties with Family Bank, vide Cheque No. 001506.3.The Honourable court be pleased to issue any other orders that it deems fit.4.The costs of this application be provided for. 2.The application is premised on the grounds that vide an order of this court dated 15/5/2024, the Appellant was ordered to pay to the Applicant Ksh. 300,000 and deposit the balance of the decretal sum of Ksh. 700,000 into an escrow account in the joint names of the advocates for the parties. Pursuant to the said order, the Appellant deposited the said sum of Ksh. 700,000/= in an escrow account at Family Bank vide Cheque No. 001506 dated 16/5/2024. The appeal was heard and dismissed on 28/1/2026, and the Applicant is desirous of enjoying the fruits of her judgment, as there is no legal or justifiable basis for the continued holding of the said decretal sum in the escrow account. 3.The Respondent swore a replying affidavit on 9/3/2026 in opposition to the application. He averred that he is a father of 6 biological children and 4 step-children. He is currently unemployed, homeless and suffering from chronic Gastritis and Congestive Heart failure, impaired eyesight and two fingers with permanent disability. He prayed for the release of the money directly to him for the sustenance of his children, and beseeched the court to permit him to pay the Applicant in 22 months’ instalments of Ksh. 27,273. He believed that the Applicant would suffer no prejudice or loss if this court allowed his humble request. 4.Rita Kanini Mutema, the Applicant’s Advocate, swore a supplementary affidavit on 19/3/2026 in support of the application. Determination 5.It is apparent that, under Order 21 Rule 12 (2) of the Civil Procedure Rules, the court has inherent discretion, for sufficient cause shown, to 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. Nevertheless, such discretion must be exercised judiciously, not arbitrarily. 6.In A. Rajabali Alidina v Remtulla Alidina & Anor (1961) EA 565, it was held that;“A debtor must show sufficient reason for indulgence and the matters to be taken into consideration by the court are the circumstances in which the debt was incurred and the financial position, conduct and bona fides of the debtor.” 7.The Respondent has not established any sufficient cause or bona fides why the Applicant should continue to be kept away from the enjoyment of the fruits of her lawful judgment, particularly now that the appeal has since been finally determined. The proposed settlement of the decretal sum in 22 months’ instalments is untenable and manifestly prejudicial to the Applicant. 8.I find that, in light of the dismissal of the Appellant’s appeal with costs, nothing impedes the release of the decretal sum to the Applicant. 9.The upshot from the foregoing is that the application dated 23/2/2026 is merited and it is hereby allowed in terms of prayer 2 thereof. DATED AND DELIVERED AT MERU THIS 21ST DAY OF MAY, 2026.S.M. GITHINJI –JUDGE21/5/2026In the presence of:-Mrs Mutema for the Applicant.Respondent is in person (absent).