https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/291

Mulwa v Amir Air Sacco (Tribunal Case E194 of 2025) [2026] KECOPT 291 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KECOPT 291 (KLR) Republic of Kenya In the Cooperative Tribunal Tribunal Case E194 of 2025 J Mwatsama, Chair, B Sawe, F Lotuiya, M Chesikaw & PO Aol, Members July 9, 2026 Between Catherine Mathembo Mulwa Claimant and Amir Air Sacco Respondent Ruling 1.Before the Tribunal for determination is a Notice of Motion Application dated 20th February 2026 filed by the Respondent under a Certificate of Urgency seeking for orders that:a.Spentb.Pending inter-party hearing of the Application, a Stay of Execution of the decree dated 21st December 2026 be issued.c.Pending the hearing and determination of this Application, a stay of all execution of the decree dated 21st January in favour of the decree holder be issued.d.The Tribunal to issue an order suspending and or postponing execution of the decree for the next six (6) months to enable the judgement debtor to re-organize its financials.e.Costs of the Application to be provided for. 2.The Application is premised on several grounds on the face it and repeated in the Supporting Affidavit sworn by Johnstone Amayo, the Chairman of the Respondent and dated 20th February 2026. The summary, the Respondents/Judgement Debtor argue out that they are unable to satisfy the decretal amount in this matter and pray that the decree herein be suspended for the next six (6) months to enable the Sacco to re-strategize. 3.In response, the Claimant in her Replying Affidavit dated 1st April 2026 opposed the Respondents’ grounds and stated that the grounds do not disclose any substantial loss that the Respondent will suffer. She further state that the Respondents did not offer any security for the due performance of the decretal sum as a requirement before a stay of execution is granted. The Claim 4.To put this case into context, it is important to understand its genesis from the facts that are contained in the Claimant’s Statement of Claim dated 28th February 2025. More specifically, the Claimant state that she has been a loyal member of the Respondent and remitted her monthly contributions regularly. That as at 31st December 2023 her total savings balance was Ksh. 938,535.20 5.She prayed for judgement against the Respondent for:a.An order that the Respondent do reimburse the Claimant the sum of Ksh. 938,535/=b.An order that the Respondent to pay interest to the Claimant at a rate of 12% p.a from when the refund fell due until the claim is fully settled.c.Costs and interests of this claim at Tribunal’s rate.d.Any other relief that is deemed fit and just to grant 6.Summons to enter appearance dated 9th April 2025 together with the Statement of Claim and annexures were served upon the Respondent on 17th April 2025. When the Respondents failed to pay the amount claimed and failed to file their defence beyond the statutory timelines, the Claimant filed on 17th June 2025 a request for a Default Judgement to be entered against them. 7.On 22nd November 2025, the Tribunal entered into a Summary Judgement in favour of the Claimant against the Respondent for the refund of Ksh. 938,335.20/=. Later, on 13th January 2026, the Claimants applied for extraction of a decree and Certificate of Costs. 8.When served with the decree and Certificate of Costs on 5th February 2026, the Respondent filed the Notice of Motion that is now the subject under consideration. Analysis 9.Having read and analysed the Claimant’s Statement of Claim together with the filed annexures and the Affidavit of Service sworn by Akhaukwa Kilisom Benjamin a court process server. Having noted that the Respondent did not file a Defence to the claim, we have analysed the grounds upon which the Respondent argued out to support their quest to have a Stay of Execution of the decree.Having considered the claimants and the respondents averments we isolate two issues for determination.i.Whether the Respondent has established reasonable grounds to warrant a stay of execution of the decree?ii.Who should bear the cost of the Application? Determination Issue One: I. Whether the Respondent has established reasonable grounds to warrant a Stay of Execution of the decree? 1.The governing law that provide guidance on applications for a Stay of Execution of a judgement and a decree pending instalment payment of the decretal sum is Order 21 Rule 12(2) of the Civil Procedure Rules which provides as follows:“i.After passing of decree, the court may on the application of the Judgment Debtor and with the consent of the Decree- Holder or without consent of the Decree-Holder for sufficient cause shown, order that the payment of the amount decreed be postponed or be made by instalments 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.” 2.The Judgement Debtor in the grounds of Notice of Motion dated 20th September 2026 and the Supporting Affidavit sworn by the chairman and dated the same day gives facts about the governance of the Sacco and they don’t deny that they owe the Claimant Ksh. 938,535.20/= plus cost and interest. 3.The Decree-Holder capitalized on the fact that the Judgement Debtor did not seek to set aside the judgement in the application and argued out that, that amounted to a tacit admission of liability. Admissions of liability is provided under Order 13 Rule 2 of the Civil Procedure Rule 2010 and provides as follows.“Any party may at any stage of a suit, where admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the court may upon such application make such order, or give such judgment, as the court may think just”. 4.This was further buttressed in the case of Choitram v Nazari (1984) KLE 327 where the court held that;“admissions have to be plain and obvious as plain as a pikestaffff and clearly readable because they may result in judgment being entered. They must be obvious on the face of them without requiring a magnifying glass to ascertain their meaning,” 5.We have re-read the grounds contained in the Notice of Motion and the averments in the Supporting Affidavit filed by Judgement Debtor and have not come across or seen where they made a plain admission of liability. It is therefore our opinion that failure to make an application to set aside a judgement cannot be or be implied to constitute an admission of liability. The Judgement Debtor has not made any plain or unequivocal liability anywhere in their statements of fact. 6.On the other hand, while the Judgement Debtor has not denied liability that they owe the Claimant Ksh. 938,535.20, they have gone ahead in prayer 4 of the Notice of Motion to seek for postponement of the execution of the decree for a period of six (6) months to enable them to re-organize their funds. 7.The Tribunal is seized with the provisions of Order 22 Rule 22 which provide that sufficient cause must be shown by the Applicant that they will suffer irreparable harm or suffer substantial loss if the court does not grant the extension. The Judgement Debtor has not demonstrated any of the two (2) parameters instead they dwell on stating the Sacco’s internal issues that have no or little value to the Decree Holder. To wrap it all, the Judgement Debtor state under paragraph 18 of the Supporting Affidavit state that they have no money to pay the Decree Holder now.Faced with a similar situation, the court in the case of Keshavji Jethbhai & Bros Limited v Saleh Abdalla [1959] EA 260 held that:“1.…it is laid down that the mere fact that the debtor is heard pressed or unable to pay in full at once is not sufficient reason for granting instalments and that ordinarily should be required to show his bonafides by arguing prompt payments of a fair proportion of the debt…. prompt payment of a fair proportion of the debt is a condition precedent for the granting of the discretion of granting instalments. Each case has to be decided on its own merit, the predominant fact being of course the bonafides of a debtor.” 8.Drawing from the above holding, Courts are mandated under Section 1A, 2A and 3A of Civil Procedure Act to balance the right of a Decree Holder to enjoy the fruits of her judgement against the right of the Judgement Debtor not to be financially bankrupted. However, as a rider, the Judgement Debtor must demonstrate a genuine capability to pay the Decree Holder within a specified timeframe. 9.Apart from stating under paragraph 17 of their Supporting Affidavit that:“the Sacco risks collapsing and going under with members savings”.The Judgement Debtor has not shown, how they intent to pay the Decree Holder within or after the six (6) months extension period. Further, they have not shown that the funds will actually be available after six months. More importantly, the Judgement Debtor has not provided security for the due performance of the decree by suggesting some instalment payment or payment of the decretal sum at once and or on which date. 10.In the case of Arun C Sharma v Ashana Raikundalia T/A Rairundalia & Co. Advocates, the Court stated that:“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the Applicant. It is not to punish the Judgment Debtor. A judgment is like a debt hence the Applicants become and are Judgment Debtors in relation to the Respondent. That is why any security given under Order 42 Rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicant. I presume the security must be one which can serve that purpose.” 11.Granted that the Respondents/Judgement Debtor has failed to provide security for due performance, the Tribunal agrees with the Decree Holder that she faces imminent risk of recovery of the decretal sum if extension of six (6) months is allowed on the basis of unsubstantiated statements. 12.In its entirety, it is the opinion of the Tribunal that the Respondent’s Notice of Motion is not merited. However, for the interest of justice, we will balance the rights of the parties herein. Disposition 10.In light of the foregoing, based on the fact that the Judgement Debtor has not demonstrated substantial loss or offered any security for the due performance of the decretal sum, the Tribunal acting on its discretionary powers allows a conditional Stay of the Execution of the decree. Final orders i.Application dated 20/2/2026 is allowed to the extent the Respondent/Applicant is granted 30 days to make good payment of decretal sum. ii.In default execution to issue. RULING DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 9TH DAY OF JULY, 2026.HON. J. MWATSAMA CHAIRPERSON SIGNED 9/7/2026HON. B. SAWE MEMBER SIGNED 9/7/2026HON. FRIDAH LOTUIYA MEMBER SIGNED 9/7/2026HON. M. CHESIKAW MEMBER SIGNED 9/7/2026HON. P. AOL MEMBER SIGNED 9/7/2026Court Assistant – Mutai