[2022] KEELC 14951 (KLR)
The court found that while the applicants had not made full disclosure of their financial status, the interests of justice warranted a suspension of execution to allow payment by instalments. The court considered the applicants' limited means, the need for seriousness in settling the debt, and the discretionary...
Source-derived case information.
- Citation
- [2022] KEELC 14951 (KLR)
- Parties
- Applicant: Republic; Respondent: District Land Adj. Officer Tigania East; Applicant: Milton Gitiye Karwamba; Applicant: Florah Ciacereu; Interested Party: Grace Kathei Tiritimi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Judicial Review Case E003 of 2021
- Procedural Posture
- Judicial Review Application / Ruling on Application for Stay and Payment by Instalments
- Outcome
- Application for stay of execution and payment by instalments allowed in part.
- Judges
- CK Nzili
- Legal Topics
- Stay of Execution, Payment by Instalments, Judicial Review Procedure, Costs Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
District Land Adj. Officer Tigania East
Respondent
Milton Gitiye Karwamba
Applicant
Florah Ciacereu
Applicant
Grace Kathei Tiritimi
Interested Party
Procedural Posture
Judicial Review Application / Ruling on Application for Stay and Payment by Instalments
Legal Issues
- 1 Whether the court should stay execution of the decree pending payment of the decretal sum by instalments.
- 2 Whether the applicants have sufficiently disclosed their financial status to justify payment by instalments.
- 3 Whether the application for payment by instalments is made in good faith and not to frustrate the judgment creditor.
Ratio Decidendi
The court found that while the applicants had not made full disclosure of their financial status, the interests of justice warranted a suspension of execution to allow payment by instalments. The court considered the applicants' limited means, the need for seriousness in settling the debt, and the discretionary nature of such orders. However, the court increased the instalment amount to Kshs 6,000 per month to ensure the debt would be settled within a reasonable period. The court further held that any default in payment would render the entire balance due and allow the decree holder to execute immediately.
Court Disposition
Application for stay of execution and payment by instalments allowed in part.
Orders
- Execution of the decree is suspended.
- Judgment debtors to pay the decretal sum in monthly instalments of Kshs 6,000 starting December 5, 2022 and thereafter every 5th day of the succeeding months until payment in full.
Full Case Text
Judgment text and source record
37 paragraphs
Republic v District Land Adj. Officer Tigania East; Karwamba & another (Exparte Applicants); Tiritimi (Interested Party) (Environment and Land Judicial Review Case E003 of 2021) [2022] KEELC 14951 (KLR) (23 November 2022) (Ruling)
Neutral citation: [2022] KEELC 14951 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Environment and Land Judicial Review Case E003 of 2021
CK Nzili, J
November 23, 2022
IN THE MATTER OF APPLICATION FOR LEAVE TO APPLY FOR ORDERS OF CERTIORARI AND IN THE MATTER OF LAW REFORM ACT CAP 26 LAWS OF KENYA AND IN THE MATTER OF A/R OBJECTION NO. 995, 996, 997, 998, 999, 1000, 1001, 1002 AND IN THE MATTER OF LAND PARCEL NO’S 6721, 4697, 1822, 4413, 6720, 4447, 1863, 1073 & 4446
Between
Republic
Applicant
and
District Land Adj. Officer Tigania East
Respondent
and
Milton Gitiye Karwamba
Exparte Applicant
and
Grace Kathei Tiritimi
Interested Party
and
Florah Ciacereu
Exparte Applicant
Ruling
1. The court is asked by an application dated August 26, 2022 to stay the execution of the decree and allow the judgment debtor to liquidate the decretal amount in monthly instalments of Kshs 3,000/= till payment in full.
2. The reasons given are contained on the fact of the application and the supporting affidavit of Milton Gitiye Karwamba and Florah Ciacereu sworn on the even date.
3. It is averred that the first judgment debtors are poor and cannot afford to pay Kshs 107,925/= at once, is a casual laborer earning Kshs 200/= per day while the second judgment debtor is unemployed and lacks sources of livelihood.
4. In considering whether to postpone, suspend and allow a party to liquidate a decretal sum in instalments, the party must disclose his or her financial status, show bonafide and demonstrate that the application is not made to obstruct, derail, avoid and or frustrate the judgment creditor. The court must also be guided by the interests of justice, the antecedents of the applicant and the circumstances leading to the debt.
5. In this matter the applicants had come to court for leave to institute judicial review and upon leave failed to file the substantive notice of motion on time or at all until the interested parties moved the court to vacate both the leave and stay since it was negatively affecting the implementation of the decision relating to Parcel No 1822 and 6721 in the names of the interested party.
6. The interested party had also raised fears that the exparte applicants used the said orders to purport to forcefully evict her from the subject land.
7. The costs arose out of inaction on the part of the exparte applicants who despite the issuance of court orders failed to file the substantive notice of motion.
8. Further the applicants have not disclosed the source of their income other than stating that they are poor and or un-employed. A party seeking such orders must make full disclosure of what he or she owns and the liabilities if any.
9. To allow the applicants to pay Kshs 300/= per month would take over 35 months to settle the decretal sum.
10. In Lavington Security Ltd & another vs Letkina Diaries Ltd & another as cited in Nicholas Gitonga Murangi vs Susan Wairimu & 4 others(2021) eKLR the court held a party in a difficult position must show seriousness in paying the amount and on arranging fair payment proposals while in TK Advocates vs Baringo County Government(2018) eKLR the court held any decision on payment in installments was discretionary to be exercised judiciously.
11. Guided by the above case law, I allow the suspension of the execution. The judgment debtors shall liquidate the same in monthly instalments of Kshs 6,000/= with effect from December 5, 2022 and thereafter every 5th day of the succeeding months till payment in full. In default of any single instalment on its due date, the outstanding balance to become due and payable at once and the decree holder to be at liberty to execute.
Orders accordingly.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURTTHIS 23RD DAY OF NOVEMBER, 2022In presence of:C/A: ZamzamNo appearanceHON. C.K. NZILIELC JUDGE