[2025] KEELC 4348 (KLR)

Omeno v Andajo & another (Environment & Land Case 3 of 2022) [2025] KEELC 4348 (KLR) (5 June 2025) (Ruling)

Neutral citation: [2025] KEELC 4348 (KLR)

Republic of Kenya

In the Environment and Land Court at Siaya

Environment & Land Case 3 of 2022

AE Dena, J

June 5, 2025

Between

Peter Okoth Omeno

Plaintiff

and

Ambrose Ochido Andajo

1st Defendant

Benedict Odhiambo

2nd Defendant

Ruling

1. The judgement debtor commenced this suit vide an Originating Summons dated 28th May 2004 seeking various orders. In a judgement delivered on 13th May 2021 Lady Justice M.A.Odeny found in favor of the plaintiff declaring that the applicant had proved that he had acquired the suit plot by way of adverse possession and therefore entitled to the orders sought in the Originating Summons with costs.

2. Aggrieved with the above determination the defendant appealed against the entire judgement being Civil Appeal (Application) No. E091 of 2023. Alongside the appeal, the defendant filed an application seeking the execution and proceedings to enforce the trial courts judgement and Certificate of costs be stayed pending the outcome of the appeal. In its ruling dated 26/4/2024 the Court of Appeal allowed the application partly and issued an order of stay only against orders (f) and (e) of the judgement which the appellate court found if executed the appeal would be rendered nugatory.

3. Meanwhile the defendant judgment debtor approached this court vide an application dated 9th November 2023 which the court dismissed for non-attendance on 13/12/2023. The application was subsequently reinstated following an application dated 2nd February 2024.

The Application 4. The application dated 9/11/2023 is the subject of this ruling and seeks the following orders;-1. Spent2. Spent3. That pending the hearing of this application, the Honourable court be pleased to issue an order to set aside the warrant of attachment of moveable property in execution of the decree for money.4. That this Honourable court be pleased to order that the decree herein be paid in instalments on the part of the defendants5. That the costs of this application be provided for.

5. The application is premised on the grounds that the plaintiff served the defendant with a warrant of attachment of moveable property in Execution of a decree for money which required the defendants to pay a sum of Kshs 245,541. 50/-. That the court has the jurisdiction to order settlement by instalments depending on the circumstances of each case. That the defendants were unable to raise the said sum due to the current rate of inflation and rising cost of living and were willing to settle the decree by instalments and ready to comply with any conditions as may be set by the court. That the decree holder will not suffer any prejudice.

6. The application is supported by the affidavit of Benedict Odhiambo Oketch sworn on 9/11/2023. The depositions in the affidavit affirm the grounds enumerated above and to avoid repetition I will not rehash them. The applicant implores the court to allow the application in the interest of justice and fairness.

7. The application is opposed by the replying affidavit of Peter Okoth Omeno the plaintiff decree holder. It is the plaintiffs case that the defendants were guilty of laches and inordinate delay. That the plaintiffs costs were taxed 10 months before the filing of the application yet the defendant had not bothered to pay and vacate the premises. That the Plaintiff had another application in the court of Appeal where the court declined to stay the orders on execution of the amount in the certificate of costs. It was urged that auctioneers proceed with execution.

Hearing of the Application 8. On 5/02/2024 I issued directions that the application be canvassed by way of written submissions. Parties filed and exchanged the same.

Submissions Defendants/applicant Submissions 9. The defendant/applicants submissions are dated 5/02/2025. Citing the provisions of Order 21 Rule 21 of the Civil Procedure Rules it is submitted, the power to grant orders for payment by instalments is discretionary and depends with the circumstances of every case. That owing to financial difficulty the applicant proposes to settle the sum owed by instalments of Kshs 5000/-. That the circumstances under which the debt was incurred arose out of a protracted court case which was determined in favor of the plaintiff. That an appeal has been lodged by the applicant who has demonstrated good faith by paying Kshs.30,000. 00/- pursuant to the orders of this court issued on 16/11/2023. That the applicant has demonstrated that he is facing economic challenges.

10. The court is referred to the case of Shakespere Investment & Another Vs Paul Kipsang Kosgei (2004)eKLR and Alidina Vs Alidina (1961)EA 565 to buttress that a debtor must show sufficient reason for indulgence and the court must consider the circumstances under which the debt was incurred, financial position, conduct and bonafides of the debtor.

11. That the Court of Appeal declined to order stay against the other aspects of the judgement including an order for payment of costs.

Plaintiffs Respondent Submissions 12. The plaintiff decree holder submissions are dated 3/03/2025. The proposal to pay the decretal sum by Kshs.5000/= per month by instalments is termed ridiculous. That the application is an afterthought made after the court of appeal declined to grant the order of stay on the certificate of costs. That no cause had been shown why the applicant should be allowed to pay the taxed cost in instalments or why the payment be postponed.

13. Rehashing the provisions of order 21 rule 12 (1)(2) it is contended that the power to order payment by instalments of the decretal amount is purely a matter of discretion by the Court. Except, the exercise of discretion is circumscribed; sufficient cause must be shown and the indulgence to pay by instalments may be on such terms that the Court thinks fit. That the onus of establishing sufficient cause rests on the Applicant. Reliance is placed on the case of Jabali Alidina V Lentura Alidina [1961] EA 565 at page 566.

14. It is urged that the court should do justice to all; not to only one of the parties. That the Respondent states he will be prejudiced unless the balance of the decretal sum is settled in total because of the conduct of the Applicant who has engaged the Decree holder in a merry round game and abusing the process of the court and employing delaying tactics. That even the 30,000 was paid through a court.

15. That the applicant cannot enjoy the discretion of the honourable court because he has been guilty of bad faith and lacks bonafides. Reliance is placed in Hildegard Ndalut v Lelkina Dairies Ltd & Anor(2005) eKLR, where the court emphasized 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.

16. It is submitted that the Applicant is guilty of laches since it is 3 years since the order to pay was granted and had exhibited don’t care attitude . The court is referred to the case of Lavington Security Limited vs Nairobi City Water & Sewerage Company Limited [2014] eKLR, where the learned reiterated interlia that the application must be made without delay and Singh Gitau Advocates v City Finance Bank Limited [2013] eKLR, on what constitutes sufficient cause.

17. It is asserted that the applicant has not fulfilled principles for granting stay and payment by installments’ as set out in the cases of Botanics Kenya Ltd –Vs- Ensign Food (K) LTD (1959) and A. Rajabali Alidina Vs Remtulla Alidina & Another (1961) EA 565: Freight Forwarders Ltd v Elsek & Elsek (K) Ltd (2012) eKLR, Keshvaji Jethabhai & Bros Limited V Saleh Abdulla [1959] EA 260

18. The court is invited to dismiss the application with costs.

Analysis and Determination 19. I have considered the application, the supporting affidavit, the opposition thereto, the submissions of the parties and the law including the caselaw cited. The issue that commends determination is whether sufficient reasons have been demonstrated to compel the exercise of the courts discretion in favor of the applicant.

20. The application is brought under the provisions of Order 21 Rule 12(2) of the Civil Procedure Rules which provides;-“(2)After passing of any such decree, the court may on the application of the judgment debtor and with the consent of the decree- holder or without the 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”.

21. Arising from the foregoing provisions, the court is granted discretion to allow payment by instalment. Guidance is also given on what basis this discretion should be exercised. An applicant must furnish sufficient reasons for why they should be indulged by the court to liquidate the decretal sum in instalments.

22. In the case of Jabali Alidina v Lentura Alidina [1961] EA 565 the court held at page 566 of the decision that:-‘All commentators on the Civil Procedure Code agree that the court’s discretion to order payment of the decretal amount in installments is one which must be exercised in a judicial and not an arbitrary manner. The onus is on the Applicant to show that he is entitled to indulgence under this rule. It is for the Applicant to show “sufficient reason” for indulgence being shown to him, and this court is immediately faced with difficulty in this respect, as the learned magistrate has not stated what reasons put forward by the Applicant he considered sufficient to justify the exercise of the court’s discretion in the Applicant’s favour.’

23. But what amounts to sufficient cause? Singh Gitau Advocates v City Finance Bank Limited [2013] eKLR, Singh Gitau Advocates v City Finance Bank Limited [2013] KEHC 2794 (KLR) Mabeya J had this to say;-8. It is trite law that apart from looking at the peculiar circumstances of the case, the Court when considering what sufficient cause amounts to must consider a number of factors. This includes how the debt was incurred, the bona fides of the Judgment Debtor, the financial position of the debtor and the judgment creditor, the conduct of the parties and the hardship that may result from enforcing the decree. It is also my considered view that applications of this nature ought to be made without undue delay.’

24. In the above case I noted that the applicant furnished the court with various documents to demonstrate its alleged financial difficulties such as his audited accounts wherefrom the judge was able to see how the company was doing to inform decision whether the client was in financial constraints. The court noted the applicant was on the path to recovery from near collapse having only turned a profit previous year. The court was even able to gauge what amount of instalment the company could reasonably pay.

25. In the case of African Banking Corporation Limited v Florence Wangari Wangai [2012] eKLR.the court stated thus–“My view is, an applicant who wishes a court to exercise its discretion and order payment of a decretal sum by way of instalments must be very candid with the court. Such an applicant must present to the court sufficient material to show that he/she is a person of no means, that whatever income she/he has is lawfully committed elsewhere. He/she must disclose to the court all his/her means and explain to the court why the proposed instalments are the best option available. Accordingly, the burden is on the applicant to prove/show that he/she deserves the order sought.”

26. Guided by the above considerations, I will proceed to review the reasons put forward by the applicant. One of the grounds stated for the application is that the defendants are unable to raise the decretal sum due to the current rate of inflation and rising costs of living which is reiterated in the supporting affidavit. The applicant states at paragraph 6 of the supporting affidavit ‘ …we are ready and willing to settle the decree within the best possible means ….’ The reasons are too general and it cannot pass in the absence of further explanation of how the applicant derives his means of living. Mere inability to pay in lumpsum is not sufficient reason. The court would expect to see an explanation of the amount of income the applicant makes probably per month, his other financial commitments or responsibilities. I have not seen any demonstration that indeed he is facing economic challenges.

27. The court cannot be taken for granted. In the absence of this information there would be no baseline upon which the court would come to a finding that there is sufficient reason to allow the application and for whatever terms.

28. As relates to bonafides I will not venture much into the issue of filing an application before the Court of Appeal as this was a right available to the applicant to exercise . The court in Hildegard Ndalut v Lelkina Dairies Ltd & Another [2005] eKLR the Court stated that –“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”.

29. I note a proposal to liquidate the amount by instalment has been given but not on oath by the applicant. The amount is offered in the submissions. It is trite that submissions are not evidence.

30. Additionally I would look at the steps and efforts made by the applicant since the payment of the Kshs 30,000/-. Moreover this payment was by order of the court. No efforts were made to pay an additional amount whatsoever and if there was any effort I was not led into any evidence in this regard or that this was extended to the decree holders counsel and it was rejected. And this is where I do not see the goodwill of the applicant at reducing the decretal sum.

31. The upshot of the foregoing is that I have not seen any sufficient cause to exercise my discretion in favor of the defendants. The application is disposed of in the following terms.1. The defendants shall pay the balance of the decretal sum as stated in the certificate of costs within 45 days of this ruling.2. In default of (1) the Claimants/Decree Holders herein shall be at liberty to execute the decree and or apply .Orders Accordingly

DELIVERED AND DATED AT SIAYA THIS 5TH DAY OF JUNE 2025HON. LADY JUSTICE A.E. DENAJUDGE5/06/2025Ruling delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:Mr. Mwamu for the Plaintiff/RespondentMs. Onyango for Defendants/ApplicantCourt Assistant: Ishmael Orwa