[2021] KECPT 27 (KLR)
The Tribunal found that the Applicant's proposal to pay the decretal sum in monthly instalments of Kshs. 30,000 was unreasonable and unsupported by any affidavit of means or sufficient cause. The Tribunal held that its discretion under Order 21 Rule 12(2) of the Civil Procedure Rules must be exercised judiciously...
Source-derived case information.
- Citation
- [2021] KECPT 27 (KLR)
- Parties
- Respondent: Rose Aluoch Oduka; Respondent: Jane Njeri Ngumba; Respondent: Winnie Wanjiku Ngigi; Respondent: John Kiplimo Tarus; Applicant: Martin Mwangi Muchoki
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 256 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Payment by Instalments
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Payment by Instalments, Discretion of Tribunal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Aluoch Oduka
Respondent
Jane Njeri Ngumba
Respondent
Winnie Wanjiku Ngigi
Respondent
John Kiplimo Tarus
Respondent
Martin Mwangi Muchoki
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Payment by Instalments
Legal Issues
- 1 Whether the Tribunal ought to stay its decision on account of payment by instalments by the Applicant.
Ratio Decidendi
The Tribunal found that the Applicant's proposal to pay the decretal sum in monthly instalments of Kshs. 30,000 was unreasonable and unsupported by any affidavit of means or sufficient cause. The Tribunal held that its discretion under Order 21 Rule 12(2) of the Civil Procedure Rules must be exercised judiciously and only where a genuine inability to pay is demonstrated. In this case, the Applicant failed to provide any credible evidence or justification for the proposed mode of payment. The Tribunal concluded that the application was made in bad faith, intended to delay execution and deny the decree holders the fruits of their judgment. Accordingly, the application for stay and payment...
Court Disposition
application dismissed with costs
Orders
- The Applicant’s Application dated 11th June, 2021 is dismissed with costs.
- A 10-day stay of execution is granted.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI
TRIBUNAL CASE NO. 256 OF 2020
ROSE ALUOCH ODUKA.......................................1ST CLAIMANT/RESPONDENT
JANE NJERI NGUMBA.........................................2ND CLAIMANT/RESPONDENT
WINNIE WANJIKU NGIGI...................................3RD CLAIMANT/RESPONDENT
JOHN KIPLIMO TARUS.......................................4TH CLAIMANT/RESPONDENT
-VERSUS-
MARTIN MWANGI MUCHOKI.................................RESPONDENT/APPLICANT
RULING
1. The Applicant has filed a Notice of Motion Application under Certificate of Urgency, dated 11th June, 2021. In the said Application, the Applicant is seeking various orders, most significant thereof being a prayer for Stay of Execution of the Tribunal’s Ruling delivered on 27th May 2021, in order for the said Applicant to pay the decretal sum in instalments of Kshs. 30,000/= each.
2. The Application was opposed by the Respondents, via a Replying Affidavit dated 12th July 2021 deponed by Jane Njeri Ngumba, and on behalf of the other Respondents. Parties were directed to proceed by way of written Submissions, which directions were complied with.
3. We have read and considered the Pleadings and submissions of all parties, which have assisted this Tribunal to come to the determination of these present issues.
4. ISSUES FOR DETERMINATION
Having carefully considered the documents and arguments by both parties, we have framed the following issue for determination:
(a)Whether the Tribunal ought to stay its decision on account of payment by instalments by the Applicant
5. ANALYSIS OF THE ISSUES
(a) Whether this Tribunal should Stay its Decision
The Applicant has invoked the provisions of Order 21 Rule 12(2)of theCivil Procedure Rules, which provides as follows:
“After passing of any such judgment or 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.”
6. In this instant Application, the Applicant has sought to pay a monthly instalment of Kshs. 30,000/= towards settlement of the decretal sum, which is in the excess of Kshs. 600,000/=. No Affidavit of Means has been filed to explain why the decretal sum cannot be paid in its entirety.
7. This Tribunal is permitted to exercise discretion in view of the proposal. In our considered view, the proposal is unreasonable. It is insufficient, and only premeditated to embarrass the course of justice. The proposal, in fine, cannot encourage this Tribunal to tamper with execution by granting stay thereof. The Application for stay is a camouflage, suspiciously manufactured to deny the Decree Holders the fruits of their Judgment.
8. We thus conclude that the Applicant’s Application in the present case smacks of bad faith, it is unreasonable, and more so, no basis has been laid to the satisfaction of this Tribunal to warrant the extension of stay orders. We hold that litigation has come to an end, and the Decree Holders must be permitted to enjoy the fruits of their judgment,
9. We find that the Orders sought should not be granted and the Application dated 11th June, 2021 must fail. The Applicant has not satisfied this Tribunal that the orders sought should be granted under Order 21 Rule 12 of the Civil Procedure Rules, due to the miniature proposal.
ORDERS
We therefore Order as follows:
(a) The Applicant’s Application dated 11th June, 2021 be and is hereby dismissed with costs.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF OCTOBER, 2021.
Hon. B. Kimemia Chairperson Signed 7. 10. 2021
Hon. J. Mwatsama Deputy Chairperson Signed 7. 10. 2021
Mr. P. Gichuki Member Signed 7. 10. 2021
Mr. B. Akusala Member Signed 7. 10. 2021
Tribunal Clerk R. Leweri
Ms Mokaya for the Respondent
Jane Ngumba for 2nd Claimant
Mokaya- We seek for stay.
Court- 10 days stay granted.
Hon. J. Mwatsama Deputy Chairperson Signed 7. 10. 2021