[2013] KEHC 2268 (KLR)
The court found that continued incarceration of the judgment debtor would not facilitate payment of the decretal sum, especially where the debtor has shown willingness to settle by taking steps to clear the title and secure a purchaser for the property. The court recognized the debtor's advanced age and health...
Source-derived case information.
- Citation
- [2013] KEHC 2268 (KLR)
- Parties
- Plaintiff: Njeru Mbundi; Defendant: Erasto Ngungi Ayub; Respondent: John Kinyua Njeru
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 92 of 1998
- Procedural Posture
- Civil Case / Ruling on Settlement of Decretal Sum and Execution
- Outcome
- Partial payment allowed; strict timeline for balance; liberty to execute if not complied.
- Legal Topics
- Execution of Decree, Settlement of Debt, Judgment Debtor Rights, Monetary Decree Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njeru Mbundi
Plaintiff
Erasto Ngungi Ayub
Defendant
John Kinyua Njeru
Respondent
Procedural Posture
Civil Case / Ruling on Settlement of Decretal Sum and Execution
Legal Issues
- 1 Whether continued incarceration of the judgment debtor is justified in enforcing a monetary decree.
- 2 Whether the judgment creditor is entitled to execute the decree after prolonged non-payment.
- 3 Whether the court should allow further time for settlement of the decretal sum given the circumstances.
Ratio Decidendi
The court found that continued incarceration of the judgment debtor would not facilitate payment of the decretal sum, especially where the debtor has shown willingness to settle by taking steps to clear the title and secure a purchaser for the property. The court recognized the debtor's advanced age and health concerns as further justification for his release from prison. However, the court also acknowledged the prolonged delay in settlement and the creditor's right to enforce the decree. Accordingly, the court allowed partial payment to the creditor and set a strict timeline for the balance, granting the creditor liberty to execute the decree if payment was not completed within 45 days.
Court Disposition
Partial payment allowed; strict timeline for balance; liberty to execute if not complied.
Orders
- The Judgment Creditor is allowed to receive the Bankers cheque of KES 200,000 in favour of his advocate.
- The Judgment Debtor must clear the balance of the decretal sum within 45 days from the date of the ruling.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CIVIL CASE NO. 92 OF 1998
NJERU MBUNDI ………………….................................. PLAINTIFF/DECEASED
VERSUS
ERASTO NGUNGI AYUB....................................... DEFENDANT/APPLICANT
AND
JOHN KINYUA NJERU …………………………………….. 3RD PARTY/RESPONDENT
R U L I N G
Today’s appearance was a mention for the Judgment Debtor to give a progressive report to the Court on the settlement of the decretal sum. A lot has been stated here by both Counsels on the position of the matter. It is true that the Judgment Creditor has been waiting for the settlement of the decretal sum for four years or so. It also is true that the Judgment Debtor was released from Prison by the Orders of this Court, on the following grounds;
This is a monetary decree and the continued incarceration of the Judgment Debtor in Prison would not in itself produce the money. The Judgment Debtor has shown willingness to work on clearing his title to the subject land to enable him dispose of it and pay the decretal sum. To this end he has cleared the title and even got a purchaser of the property. I do appreciate that it has taken longer than anticipated.
The Judgment Debtor is a very old man and his stay in Prison was taking a toll on his health.
It would therefore be wrong for any party to claim that this Court is giving the Judgment Debtor undue favour. The Judgment debtor has already reported loss of the original title deed. The Land Registrar Embu has vide his letter dated 8th August 2013 sent the Notice of loss for gazettement. It’s not indicated whether the same has been gazetted. Once the gazettement has been done it is the duty of the Judgment Debtor to convince the purchaser to immediately release the funds to him to enable him settle the decretal sum. It would be unfair to again tie the Judgment Creditor to the terms set by the Judgment Debtor and the purchaser. I will therefore;
Allow the Judgment Creditor to receive the Bankers cheque written in favour of his advocate kshs.200,000/=.
The Judgment creditor to hasten the remaining process and clear the balance of the decretal sum within 45 days from today. If this is not complied with the Judgment Creditor is at liberty to execute the decree.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT EMBU THIS 4TH DAY OF SEPTEMBER 2013.
H.I. ONG'UDI
J U D G E
In the presence of;
Mr. Mugambi for Judgment Creditor
Mr. E. Njiru for Mr. Njeru for Judgment Debtor
Kirong/Mutero – C/c