[2007] KEHC 2785 (KLR)
The court found that the defendant failed to provide sufficient material or documentary evidence to support his claims of changed circumstances, such as the alleged receivership of his business or the judgment debt to Daima Bank Limited. Furthermore, the liability to Daima Bank was known to the defendant at the time...
Source-derived case information.
- Citation
- [2007] KEHC 2785 (KLR)
- Parties
- Plaintiff: Njeri Onyango; Defendant: Patrick Musimba
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 106 of 2003
- Procedural Posture
- Civil Case / Ruling on Application for Stay of Execution and Review of Installment Payments
- Outcome
- Application for review of installment payments declined; stay of execution granted; costs to the plaintiff.
- Legal Topics
- Stay of Execution, Payment by Installments, Review of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njeri Onyango
Plaintiff
Patrick Musimba
Defendant
Procedural Posture
Civil Case / Ruling on Application for Stay of Execution and Review of Installment Payments
Legal Issues
- 1 Whether the defendant has satisfied the conditions for review of the installment payment order under Order XLIV Rule 1 of the Civil Procedure Rules.
- 2 Whether the defendant is entitled to a stay of execution of the decree.
Ratio Decidendi
The court found that the defendant failed to provide sufficient material or documentary evidence to support his claims of changed circumstances, such as the alleged receivership of his business or the judgment debt to Daima Bank Limited. Furthermore, the liability to Daima Bank was known to the defendant at the time of the earlier application for payment by installments and was not disclosed then. As such, the defendant did not satisfy the conditions for review under Order XLIV Rule 1. The court also noted that the sum due was substantial and the current installment order already prolonged the plaintiff's recovery. However, given that the defendant had paid a significant amount towards...
Court Disposition
Application for review of installment payments declined; stay of execution granted; costs to the plaintiff.
Orders
- The application for review of the installment order is declined.
- A stay of execution is granted.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS) Civil Case 106 of 2003
NJERI ONYANGO ……….……………..……….………….....PLAINTIFF
VERSUS
PATRICK MUSIMBA…………………………………....…DEFENDANT
RULING
This is an application by the defendant for stay of execution and payment of the decretal amount by reduced installments of KShs.20,000. 00 instead of KShs.50,000. 00 ordered by Mutungi J on 27. 5.2005. The application is expressed to be brought under the provisions of Order XLIV Rule 1 of the Civil Procedure Rules Section 3A of the Civil Procedure Act and all other enabling provisions of the Law.
The application is based primarily on the reasons that he is not in arrears of the installments ordered by Mutungi J and that he is now unable to continue paying KShs.50,000. 00 as ordered. The application is supported by an affidavit sworn by the defendant in which it is deponed that one of his businesses was placed under receivership thereby drastically reducing his income. His surviving business has not picked up sufficiently to generate income. It is also deponed that he owes M/S Daima Bank Limited KShs.12,900,364. 75 with interest payment of which sum he is negotiating. Because of those circumstances, the defendant deponed that he is unable to pay the decretal amount in the installments ordered by Mutungi J.
The application is opposed and the plaintiff has filed a replying affidavit. The plaintiff contends that the application was designed to pre-empt the Notice To Show Cause which had been listed for hearing on 10. 5.07 and was therefore brought in bad faith. It is also her further contention that the defendant has been in default of the order to pay by installments and no new circumstances have arisen to warrant the review sought. In her view it would take an inordinately long period to settle the decretal amount if the installments sought are allowed.
I have considered the application and the affidavits filed by both sides. I have also considered the rival submissions of the counsels appearing. Under Order XX Rule II (2) the Court has a discretion to postpone payment of the decretal amount or order payment of the same by installments. That is the discretion my colleague Hon. Mutungi J exercised on 27. 5.2005. So what does the defendant say has happened to warrant the review sought. He says one of his businesses has been placed under receivership by M/s Fidelity Commercial Bank Limited. No material has been placed before the court to support that averment. He also says that he owes M/S Daima Bank KShs.12,900,364. 75 and a judgment for that sum together with interest was entered against him on 1. 7.2003. Again, no documentary evidence has been furnished to the court to support the position. In any event even if such a judgment was indeed entered against the defendant on the date alleged, it was a liability that the defendant was aware of when he lodged his earlier application to be allowed to pay by installments on 27. 4.2004. Yet the defendant did not mention the liability before Mutungi J in the said application.
In view of the above, I find and hold that the defendant has not satisfied any of the conditions for the grant of a review under Order XLIV Rule 1 of the Civil Procedure Rules. The sum due is in excess of KShs.4,000,000. 00. The installments ordered by Mutungi J of KShs.50,000. 00 per month will still keep the plaintiff out of her money for a long time. I must in the circumstances refuse the application for review of the installments.
With regard to the prayer for stay of execution, I am inclined to allow the same in view of the fact that the defendant has paid KShs.1,220,000. 00 as at 4/4/07. The defendant shall therefore continue payment of the decretal amount together with interest as ordered by my Brothers Mutungi J and Ochieng J.
So save for the order of stay of execution, this application is declined. The defendant shall pay the plaintiff’s costs of this application.
Orders accordingly.
DATED AND DELIVERED AT NAIROBI THIS 11TH DAY OF JUNE, 2007.
F. AZANGALALA
JUDGE
Read in the presence of:-
Mungai for the plaintiff.
F. AZANGALALA
JUDGE
11/6/07