[2024] KEELC 13952 (KLR)

Mburu v Mbelenzi & another (Environment & Land Case 374 of 2017) [2024] KEELC 13952 (KLR) (19 December 2024) (Ruling)

Neutral citation: [2024] KEELC 13952 (KLR)

Republic of Kenya

In the Environment and Land Court at Muranga

Environment & Land Case 374 of 2017

LN Gacheru, J

December 19, 2024

Between

Stephen James Karanja Mburu

Plaintiff

and

Raphael Mbelenzi

1st Defendant

Lucas Kamau Kariithi

2nd Defendant

Ruling

1. The Notice of Motion Application for determination is the one dated 3rd July 2024, brought under Order 51 Rule 1, Order 4 Rule 12(2), of the Civil Procedure Rules, and Sections 1A,1B and 3A of the Civil Procedure Act, wherein the 1st Defendant/Applicant has sought for following orders; 2. That this Honourable Court be pleased to order for a stay of execution of the plaintiff's costs herein and all consequential orders.

3. That this Hounourable Court be pleased to grant leave to the 1st Defendant/Applicant to liquidate the Plaintiff's taxed costs by way of installments as follows:i.A sum of Kshsl10,000/= to be paid by 5/8/2024. ii.The balance of Kshs. 221,888/=, to be liquidated by equal monthly instalments of Kshs.5,000/=, on or before the 5th day of every succeeding month till payment in full.

4. THAT costs of this application be provided for.

2. This Application is premised on the following grounds.a.That the Plaintiff’s bill of costs was taxed on 5th October 2023, in the sum of Kshs.231,888/=.b.That thereafter the 1st Defendant filed a Reference in Murang'a ELC Misc. Application No E003 of 2023, but the said Reference was dismissed on 18th June 2024; Therefore, there is imminent damage that the plaintiff may proceed to execute his taxed costs, and thus the 1st Defendant is apprehensive;c.That the 1st Defendant is a peasant farmer and unable to settle the entire costs at once.d.That the 1st Defendant/Applicant has proposed to settle the Plaintiff’s taxed costs in installments, and he is ready and willing to comply with any condition/s that this court may impose;e.That the 1st Defendant/Applicant has acted in good faith, and that no prejudice shall be occasioned to the Plaintiff if the orders sought are granted.

3. The application is also supported by the Affidavit of Raphael Mbelenzi, the 1st Defendant herein, who reiterated the averments made on the grounds in support of the application, and further averred that there is imminent danger that the Plaintiff may proceed to execute his taxed costs. Further that the instalments proposed by him are reasonable in the circumstances, and that he has acted in good faith. He urged the court to allow his application.

4. The said application is opposed by the Plaintiff/Respondent on the following grounds: 1. The Applicant has not demonstrated good faith in dealing with this matter and is therefore undeserving of the court indulgence.

2. The Applicant has not demonstrated any evidence before this Honourable Court on his financial position to enable the court verify that he has been unable to meet the payment of the decretal sum.

3. The Applicant has made several applications to this Honourable Court since judgment was delivered in favour of the 1st Respondent on 19th October 2022, meant to circumvent or delay payment of the decretal sum to the detriment of the 1st Respondent.

4. The Applicant ought to have paid a substantial portion of the decretal sum first as a show of good faith.

5. The proposal to the sum of Kshs. 10,000/= as the 1st installment, and Kshs. 5,000/= for the other installments to be paid monthly to settle the decretal sum is unreasonable. It will take about four (4) years to settle the decretal sum.

6. The applicant has not established sufficient cause for the grant of the orders sought.

5. This application was canvassed by way of written submissions wherein, the 1st Defendant/ Applicant filed his submissions dated 19th August 2024, through Kamwendwa & Co. Advocates.

6. It was his submissions that indeed a Decree holder should enjoy the fruits of the judgment, but the court in also empowered under Order 21 Rule 12 of the Civil Procedure Rules, to order that monies due and pursuant to the judgement of the court can be paid in installments, where sufficient reasons have been given. Therefore, the said order of the court give the court wide discretion as to whether payment of the amount decreed would be postponed or settled by way of installments.

7. It was his further submissions that the principles to guide the court in exercising its discretion under Order 21 Rule 12 of the Civil Procedure Rules, were laid down in the case of Diamond Star General Trading LLC Vs Ambrose D.O Rachier carrying on business as Rachier & Amollo Advocates (2018 eLKR,), where the court cited with approval the case of Keshavji Jethabhai & Bros Ltd vs Saleh Abdullah (1959) E.A. 260, and A Rajabali Alidina Remtulla Aidina & Another (1961) E.A. 565, where the conditions were enumerated as follows;a.The circumstances under which the debt was contracted.b.The conduct of the debtor.c.His financial position.d.His bona fides in offering to pay a fair proportion of the debt at one.

8. On the issue of the circumstances under which the debt was contracted, it was submitted that the 1ST Defendant/Applicant was ordered to pay costs to the Plaintiff/ Respondent, and though the Plaintiff/ Respondent’s suit was dismissed, the 1st Defendant/Applicant was directed to pay the costs of the Counter claim, which he had filed against the 1st Respondent/ Plaintiff herein, and the said Counter claim was dismissed with costs.

9. On the Applicant’s financial position, it was submitted that he is a peasant farmer with no regular income, thereby affecting his ability to pay the decretal sum at once.

10. On whether the applicant is bonafide in offering to pay a fair proportion of the debt, it was submitted that the Applicant has demonstrated bonafides by arranging to pay the decretal sum by installments. That the Applicant has arranged to pay promptly Kshs.10,000/=, and thereafter a balance of ksh.5000/= per month which proposal is serious and reasonable in light of the prevailing circumstances

11. On the conduct of the applicant, it was submitted that the only application by the applicant is a Reference, brought under the Advocates Remuneration Order, which was within his right, but not as an intention to delay or obstruct the payment of costs. Further that immediately when the said Reference was dismissed the Applicant filed the instant Application without delay.

12. Therefore, the Applicant submitted that he has met the threshold set out in Order 21 Rule 12 of the Civil Procedure Rules 2010, and he is deserving of the exercise of this court’s discretion. That the applicant has demonstrated good, sufficient and adequate reasons as to why he is entitled to the indulgence of this court. He urged the court to allow his application.

13. The Plaintiff/ 1st Respondent filed his written submissions dated 30th August 2024, and urged the court to dismiss the instant application, with costs.

14. The 1st Respondent relied on Order 21 Rule 12 of the Civil Procedure Rules which provides;“[Order 21, rule 12. ] Decree may direct payment by instalments. 12. (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 decreed shall be postponed or shall be made by instalments, with or without interest, notwithstanding anything contained in the contract under which the money is payable.”

15. He also submitted that the above provisions of law requires the applicant to establish sufficient cause to enable the court to exercise its discretion, to order payment by installments. That the applicant herein has not demonstrated any evidence to prove his financial position to enable the court to verify that he has been unable to meet the payment of the decretal sum.

16. Further it was submitted that the Applicant has not shown any good faith ,as he has not made good any substantial portion of the decretal sum. Further, that the proposal made by the applicant of payment of Kshs.10,000/=, as the 1st installment, and Kshs.5000/-thereafter every month to settle the decretal sum is unreasonable as it would take four (4) years to settle the said decretal sum.

17. The Respondent relied in the case of Supplies Services Ltd vs Murang'a Farmers Cooperative Union (Civil case NO. 304 of 2014)(2021) the Court referred to the case of Hildegard Ndalut vs Lelkina Dairies Ltd & Anor. (2005) eKLR, and held;“Both parties have referred to the case of Keshavji Jethabhai & Bothers Limited –vs- Saleh Abdulla [1959] EA 260, which is a case from a High Court of Tanganyika. That case followed the principles laid down in the Indian case of Sawatram Ramprasad –vs- Imperial Bank of India (1933) AIR Nag. 33 – that a defendant should be required to show his bona fides by arranging fair payment of the proportion of the debt – in persuading the court to allow payment by way of installments. This, in my view, is the proper test to apply in granting orders for payment of a decretal amount by way of instalments. A judgment creditor is entitled to payment of the decretal amount, which he should receive promptly to reap the fruits of the judgment. The judgment debtor might genuinely be in a difficult position in paying the decretal amount at once. However, he has to show seriousness in paying the amount. In that event he should show his bona fides by arranging fair payment proposals to liquidate the amount”.

18. Therefore, it was ultimately submitted that the 1st Defendant/Applicant has not presented sufficient information to enable this court to exercise its discretion in his favour. He urged the court to dismiss the instant application.

19. The court has considered this application which it basically anchored under Order 21 Rules 12 (2) of the Civil Procedure Rules, which Order grants the court discretion to allow the judgment debtor to settle the decretal sums in installments. However, that the applicant must demonstrate sufficient cause as to why the court should exercise such discretion.

20. From the record herein, it is evident that on 19th October 2022, this court dismissed the 1st Defendant/Applicant’s Counter claim, against the Plaintiff/Respondent with costs.

21. Subsequently the Plaintiff/Respondent filed his Bill of costs of Ksh413,797/=, which bill was taxed at Kshs.231,888/=, and Kshs.183,184/=, was taxed off, and a Certificate of taxation was issued on 4th July 2024.

22. The Ruling on the taxation of Bill of Costs was issued on 5th October 2023, and instead of settling the said bill, even by installment, the 1st Defendant/Applicant filed ELC Misc Ref.E003 of 2023, wherein he sought to have the decision of the taxing master dated 5th October 2023, set aside and the said Bill of costs be taxed afresh.

23. However, the said Application and/or Reference was dismissed on 18th June 2024, and thereafter the 1st Defendant filed the instant application, to be allowed to pay the Decretal amount in instalments.

24. Further, the Applicant herein has sought for stay of execution of the Plaintiff's costs, and all consequential orders thereto. The applicant has not anchored this application for stay of execution under Order 42 Rule 6, of the Civil Procedure Rules, but has brought it under Sections 1A, 1B and 3A of the Civil Procedure Act, which deals with the overriding objective of the Civil Procedure Act, and the inherent powers of the court to issue orders that are necessary for end of justice to be met.

25. The application for stay of execution having not been brought under Order 42 Rule 6 of the Civil Procedure Rules, this court will not consider the principles thereof for grant of such orders being substantial loss; application having been brought without unreasonable delay and security to costs.

26. The court will consider this Application under the Oxygen Principles, and it is evident that the suit that brought about the Bill of costs, under consideration, was filed on 8th April 2010, and the 1st Defendant filed a Defence, and a Counter-claim on 18th October 2011, which Counter- claim was dismissed with costs, after the suit was heard through viva voce evidence.

27. The said judgment was delivered on 19th October 2022, which was about 12 years from the date of said suit was filed.

28. The application herein having been filed under sections 1A and 1B of the Civil Procedure Act, the court is mindful that one of the overriding objectives of the Act is to have the matter brought under the said Act determined expeditiously and in affordable manner.

29. The said suit having been filed in 2010 and determined in 2022, was infact not determined expeditiously or in a timeous manner. It is evident that parties herein spent more than 10 years in a court.

30. The Plaintiff/Respondent was the successful litigant, and obviously he expects to reap from the fruits of his judgment. The Decretal sum herein is on costs that were awarded by the court, and once such costs are paid, the matter will completely be determined.

31. The 1st Defendant/Applicant has filed this application under Order 21 Rule 12 (2), of Civil Procedure Rules, seeking the court to exercise its discretion and order payment of the decretal sum in installments.

32. The Applicant proposed to settle the decretal sums in instalments, and suggested to pay a sum of Kshs.10,000/= immediately, and thereafter payment of ksh. 5000/=, every month. If he pays Kshs.10,000/=. Immediately, the balance will be in the tune of Kshs.221,888/=. Further if the Applicant is allowed to pay Kshs.5000/-=,per month, it will take about 44½ months, before the full payment is done, which will translates to about 3½ years.

33. Given that the suit herein took 12 years before it was determined, it would mean by the time the final installment of Kshs.5000/- is paid, the Plaintiff/Respondent would have waited for 15½ years to fully and completely reap the fruits of his judgment. Is that fair and reasonable? and/or expeditious as per the provisions of sections 1A and 1B, of the Civil Procedure Act? Certainly not.

34. On the merit of the instant Application, the court will rely on the findings of the Court in the case of Keshvaji Jethbhai & Bros Ltd vs Sale Abdulla (1959) E.A 260, where the court held;…The mere fact that the debtor is hard pressed or is unable to pay in full at once is not sufficient reason for granting installments, and ordinarily he should be required to show his bona fides by arranging prompt payment of a fair proportion of the debt although this is not a condition precedent for the exercise of the discretion of granting installments. Each case has to be decided on its own merits, the predominant factor being the bona fides of the debtor.Another consideration would be the ability of the debtor to pay substantial installments so that the repayment of the decretal sum would not be unreasonably delayed… The existence of sufficient reason will depend upon the facts of the particular case. The court will consider the circumstances under which the debt was contracted, the conduct of the debtor, his financial position, and so forth, and installments should be directed where the defendant shows his bona fides by offering to anything like a fair proportion of his debt at once...Because a person has been doing big business it does not follow that he should be able to pay his debts, which might well be proportionately larger”. (emphasis added).”

35. The onus was upon the 1st Defendant /Applicant to demonstrate that he has sufficient cause to be entitled to the orders sought.

36. On what constitutes sufficient cause, this would basically be based on the circumstances that were referred to in the case of Rajabali Alidina vs Remtulla Alidina & Another (supra).

37. This court has considered the circumstances of the case herein, and the written submissions herein, and the court finds that the decretal sum herein is on costs for the Counter – claim ,and the same ought to have been paid to the Plaintiff/Respondent promptly so that he can reap the fruits of his judgment.

38. Further the Applicants has not demonstrated the difficulties that he has in paying the full decretal sum. His proposal to pay a sum of Kshs.10,000/=,immediately and thereafter on installments of ksh 5000/=, every month is not reasonable and is not brought in good faith.

39. It is also evident that when the Ruling on taxation was filed, instead of paying the costs even by installments, the 1st Defendant/Applicant filed an application to set aside the said Ruling. Therefore, the conduct of the applicant is not of a litigant who has brought this application in good faith, but one who is out to delay the full realization of the decretal sum, to enable the Plaintiff to reap the fruits of his Judgement.

40. The application herein if allowed, would delay the finalization of this matter, and thus going against the spirit and objectives of Sections 1A and 1B of the Civil Procedure Act.

41. Further, it is not in doubt that section 3A of the same Act, states that courts have inherent powers to issue orders that are necessary or the end of justice. This court finds the necessary orders herein for the end of justice to be met is to disallow the instant application, with costs to the Plaintiff/Respondent herein.

42. Consequently, after considering the rival written submissions, cited authorities, and the relevant provisions of law, this court finds and holds that the instant Notice of Motion Application dated 3rd July 2024, by the 1st Defendant/Applicant is not merited, and the same be and is hereby dismissed entirely with costs to the Plaintiff/Respondent.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 19 TH DAY OF DECEMBER, 2024. L. GACHERUJUDGE19/12/2024In the presence of;Ms Kabata for the Plaintiff/RespondentMr Kamwendwa for the 1 st Defendant/ApplicantAbsent for the 2 nd Defendant/ RespondentJoel Njonjo - Court AssistantL. GACHERUJUDGE19/12/2024