https://new.kenyalaw.org/akn/ke/judgment/scc/2026/78

Owuor v Kimeu (Commercial Cause E223 of 2026) [2026] SCC 78 (KLR) (14 May 2026) (Judgment) Neutral citation: [2026] SCC 78 (KLR) Republic of Kenya In the Small Claims Court at Mombasa Commercial Cause E223 of 2026 TN Mwangeka, RM May 14, 2026 Between Millicent Akinyi Owuor Claimant and John Mutua Kimeu Respondent Judgment 1.The facts in this case are largely undisputed. From the evidence on record the Respondent does not dispute the debt. His only argument is that he is unable to pay the same in lumpsum and has proposed monthly installments of Kshs. 30,000/- which proposal has been rejected by the Claimant. 2.Section 36(1)(a) of the Small Claims Court Act, enables this court to order payment of a judgment debt in a lump sum or in such instalments and at such times as the Court may determine. This provision grants the court discretionary authority to structure payment terms without requiring the parties' consent, aligning with the Act’s objective of delivering expedient and practical justice. 3.I rely and affirm the court’s reasoning in Wamedi v Mwalughongo (Civil Appeal E069 of 2024) [2025] KEHC 7101 (KLR) (30 May 2025) (Judgment) wherein the court stated that installment orders are to be grounded on fairness and should balance the interests of both parties. 4.In Diamond Star General Forwarding Ltd v Ambrose D O Rachier (2018) eKLR the court held that:That 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 or he has is lawfully committed elsewhere. He or 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 orders sought”. 5.The court’s power to order payment of the decretal sum in instalments is discretionary; and exercised based on reason. The relevant considerations were aptly captured by the court in Keshvaji Jethabhai & Bros Limited v Saleh Abdulla [1959] EA 260, as follows: -the Court will consider the circumstances under which the debt was contracted, the conduct of the debtor, his financial position, and so forth, and instalments should be directed where the defendant shows his bona fides by offering to pay anything like a fair proportion of his debt at once. 6.The Respondent has stated that he depends on rental income of about Kshs. 100,000/-per month. Further, that he has a daughter in collage whom he caters for financially on top of his own rental payments and household bills. As such faces financial hardship and is unable to pay more than Kshs. 30,000/- per month by the 15th of every month. He however acknowledges that the money was lent to him over four years ago. Much time has passed. 7.Having considered the rival positions, this court finds that the proposal of Kshs. 30,000/- per month to be inordinately low given how much time has passed since the money was loaned to the Respondent. Having enjoyed the fruits of the loan, the Respondent has a moral obligation to repay the said money in reasonable monthly installments, having failed to furnish this court with tangible proof of financial means. 8.Consequently, the following orders issue;1.Judgment on admission is entered in favor of the Claimant against the Respondent for Kshs. 640,000/-.2.The Respondent to settle the judgment debt in monthly instalments of Kshs. 100,000/- payable on the 15th of every month until payment in full with effect from 15th of June 2026.3.Interest will continue to accrue on any unpaid sum until payment is made in full.4.Parties to bear their own costs. DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE……14TH …. DAY OF……MAY……2026HON. THERESA N. MWANGEKARESIDENT MAGISTRATE/ADJUDICATORIn the presence of;Claimant present in person;Respondent present in person.C/A Esther