Progressive Credit Ltd v Wanjala & another (Commercial Case E2841 of 2025) [2026] SCC 212 (KLR) (14 August 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE SMALL CLAIMS COURT OF KENYA AT UASIN GISHU COUNTY COURT NAME: ELDORET SMALL CLAIMS COURT** **CASE NUMBER: SCCCOMM/E2841/2025** **PROGRESSIVE CREDIT LIMITED VS SERAPHINE NAFULA WANJALA AND JAMES ODUORI PAMBA** **RULING** 1. The ruling herein is in respect to the Notice of motion dated1st July, 2026. which was filed under certificate of urgency. The application is supported with grounds therein and supporting affidavit sworn by James Oduori Pamba. The major grounds being that this Honourable court delivered judgement ordering the respondents to pay ksh 293,162.84/- while allowing the counterclaim/ set off of ksh 48,000/- resulting a decretal balance to ksh 245,162.84/-. 2. The 1st respondent averred that he operates a cyber business at the gate of former Moi University West campus making an average daily income of ksh 2,000/-. He further averred that when the university closed in 2024 indefinitely it greatly affected his business. That his wife the 2nd applicant works at a cyber where she is paid ksh 10,000/-. He poses that he is a family man with 5 children who fully depend on him and the eldest is a student at Kenyatta University. It is his evidence on oath that he is currently facilitating another loan of ksh 300,000/- with Equity Bank Kenya Limited and that the affidavit of means filed sets out his income, assets liabilities and family financial obligations which demonstrated his current financial position. 3. The application was opposed by a replying affidavit sworn on 27th July, 2026 by one Mr. Guto Ochoki who deponed that the applicants are indebted to the claimant's company in the sum of ksh 245,162.8/-4 which they have failed, neglected and or refused to settle within reasonable time. That the applicants’ application to pay in instalments is made in bad faith and is merely intended to delay and frustrate the execution of the lawful judgment. He deposes that the evidence placed before this court is insufficient and incredible incapable of demonstrating their alleged inability to settle the decretal sum as the same is marred with inconsistencies. Further, it is deponed that the copies of business daily sales and records of the applicant for the month of June contain a deliberate miscalculation for 29th June 2026 where the daily amount should be ksh 20,050/- but indicated as 2,050/-. That it is suspicious that the applicant pays their employee an average of ksh 500 per day which averages at ksh 13,000-15,000/- while the wife claims to be paid ksh 10,000/- per month. 4. The deponent avers that the affidavit of means has clear irregularities such that the business rent for the month of May is under receipt number 548 while the one for June is receipt number 546. That the applicant has failed to demonstrate that he is financially constrained. The respondent prays for the applicant to be compelled to pay an initial amount of ksh 100,000/- with the balance being paid in monthly instalment of ksh 40,000/- until payment in full and in default execution to issue. The respondent stated on oath that the loan amount, the subject of this suit was disbursed to the applicant in April, 2024 and the last payment made by the claimant was in August, 2025 and therefore the amount of time that hsa duly passed justifies the respondent asking for ksh 100,000/-. He deponed further that the respondent's proposal of payment of Monthly Installments of Kshs. 40,000/= is well below the initial installment amount agreed upon between the respondent and the Applicants which was Kshs. 53,340/= and thus reasonably considerate. That the Applicants have further failed to demonstrate that the proposed monthly instalment of Kshs. 20,000/= is reasonable and capable of settling the decretal sum within a reasonable period. 5. The application was canvassed by way of written submissions. From the application, replying affidavit and the trivial submissions, the issue for determination is: whether the applicant is meritorious? 6. This is a concluded matter, judgment having been delivered on 5th June, 2026. To date the said judgment is yet to be satisfied by the applicants herein. The truth is, the claimant herein has been denied the opportunity of enjoying the fruits of the judgment delivered. From the applicant's averment he admits that they are yet to satisfy the judgment that is why he is before this court seeking to have the decree satisfied by way of instalment. Section 36(1) a of the small claims court act expressly provides that the Small Claims Court may make an order requiring payment of money “either in lump sum or by instalments. Rule 27(1) of the Small Claims Rules provides that where the decree-holder rejects the debtor's proposal to pay by instalments, the Court may, upon an oral or written application by the debtor, hear the competing proposals and, if satisfied by evidence that the debtor is unable to satisfy the decree in lump sum, order payment according to the debtor's proposed schedule; according to the creditor's proposed schedule; or by instalments on such terms as the Court considers just. Importantly, Rule 27(2) directs the Court, in determining such an application, to consider, among other things the debtor's net monthly income; the aggregate value of the debtor's assets and liabilities; and assets disposed of by the debtor in circumstances suggesting an intention to defeat the creditor. In determining such an application, the Court is required to consider, among other matters, the debtor's net monthly income and the aggregate value of the debtor's assets and liabilities. 7. The burden therefore rests upon the Applicants to place before the Court sufficient evidence demonstrating their inability to satisfy the decretal sum in lump sum. In this case, the Applicants have placed before the Court an affidavit of means setting out their income, assets, liabilities and family obligations. The 1st Applicant has also explained that his cyber business has been adversely affected by the closure of the former Moi University West Campus and that he has five children who depend on him. He has further disclosed that the 2nd Applicant earns approximately Kshs.10,000/= per month. 8. I have, however, carefully considered the Respondent's challenge to the Applicants' evidence. The Respondent has pointed out discrepancies in the Applicants' business records, including the alleged erroneous entry for 29th June, 2026, inconsistencies concerning the amounts paid to an employee and discrepancies in the receipts relied upon in respect of business rent. These matters raise legitimate questions regarding the accuracy and completeness of the Applicants' disclosure of their financial position. 9. The Court is therefore not persuaded that the Applicants have demonstrated, to the fullest extent alleged, an inability to pay any substantial amount towards the decree. Nevertheless, the existence of the identified discrepancies does not, in my view, entirely displace the evidence placed before the Court regarding the Applicants' income, family obligations and general financial circumstances. I am accordingly satisfied that the Applicants have demonstrated sufficient cause for the Court to exercise its discretion under Rule 27 of the Small Claims Court Rules and permit the decretal sum to be paid by instalments. 10. However, the Applicants' proposed monthly instalment of Kshs.20,000/= would, in the circumstances of this case, result in the decree being settled over an unduly prolonged period and would not sufficiently take into account the Respondent's legitimate right to enjoy the fruits of the judgment. 11. Equally, I have considered the Respondent's proposal for payment of an initial sum of Kshs.100,000/= followed by monthly instalments of Kshs.40,000/=. While the proposal is reasonable from the perspective of the decree-holder, the Court must also take into account the Applicants' demonstrated financial circumstances. Balancing the interests of both parties and exercising the discretion conferred upon the Court under Rule 27, I find that a monthly instalment of Kshs.30,000/= is just and reasonable in the circumstances. It is an amount which is higher than that proposed by the Applicants, thereby ensuring expeditious settlement of the decree, but lower than the amount proposed by the Respondent, thereby affording the Applicants reasonable accommodation in light of their financial circumstances. 12. I therefore find the application meritorious to the extent stated below. Consequently, the Notice of Motion dated 1st July, 2026 is allowed on the following terms: a. The Applicants shall pay an initial sum of Kshs.70,000/= towards the decretal sum within fourteen (14) days from the date of this ruling. b. The balance thereof shall be paid by monthly instalments of Kshs.30,000/= until payment in full commencing in the month of September 2026. c. In the event of default, execution to issue. d. no orders as to costs Parties are granted leave to appeal Ruling dated and delivered at Eldoret this 14th August 2026. M.E Aligula-RM In the presence of C/A Mr. Lepatoiye