[2022] KEHC 15074 (KLR)

Seyoum v Tanui (Civil Suit 776 of 2009) [2022] KEHC 15074 (KLR) (Civ) (14 October 2022) (Ruling)

Neutral citation: [2022] KEHC 15074 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 776 of 2009

DO Chepkwony, J

October 14, 2022

Between

Alem Seyoum

Plaintiff

and

William Tanui

Defendant

Ruling

1. The instant application is dated December 3, 2021 and is seeking for orders that;a.This honourable court do grant an order of payment of the decretal sum by installments of Kenya shillings two hundred and fifty thousand (Kshs 250,000. 00/-) per month and Kenya shillings one million (Kshs 1,000,000. 00/-) as the 1st Instalment Until the satisfaction of the decree in full.b.This honourable court grant an order of stay of execution be granted (sic) to stop the sale by public auction of all that piece of land known as title No Uasin Gishu/Kimumu/153 because the applicant is willing to pay the decretal sum by instalments.c.Costs of this application be in the cause.d.This honourable court be pleased to grant such other/ further orders as it may deem just and expedient in the interest of justice.

2. The application is premised on the grounds on its face and the dispositions in the supporting affidavit of William Tanui sworn on the even date. The applicant admits that he was served by the respondent with a notice to show cause why execution should not issue dated November 5, 2021. The applicant is apprehensive that unless the execution order over all that piece of land known as title No Uasi Ngishu/Kimumu/153 is lifted, he will lose his income through improper and misconceived execution. The applicant contends that he is unable to pay the huge decretal amount in lump sum but he is ready and willing to satisfy the decree in instalments. That it is fair and just for the court to direct payment by instalments as prayed for since the applicant has demonstrated willingness to pay the decretal amount, which willingness should not be destroyed by terms which either increase the burden or ignore the overall circumstances of the case. It is contended that this court has discretion to order a stay of execution and payment of decretal sum in instalments. The applicant prays that this court grants an order of payment of the decretal sum by instalments until the satisfaction of the decretal sum and a stay of execution in order to protect his income.

3. The application is opposed vide the replying affidavit of Njeri Kariuki sworn on January 17, 2022. It is admitted that the notice to show cause was indeed served upon the applicant. Further, that the applicant has been elusive when it comes to payment of the judgment award and compliance of orders since the commencement of this suit in the year 2009. That, by the ruling of November 30, 2009, this court ordered that applicant to furnish security in the tune of Kshs 2. 7 million within 30 days to be deposited in a joint interest earning account pending the determination of the suit, failure to which the suit property was to be attached. That the said orders have never been complied with to date, as a result of which the court entered Judgment on admission against the applicant on October 22, 2010 for $31,350 and which amount has grown to $73,257 having earned interest at 12% over the last 12 years since the filing of the suit. That, on April 21, 2015 the Applicant was served via substituted service through the Standard News Paper to attend court on May 4, 2015 for a notice to show cause why execution should not issue but he did not attend. That several notices to show cause have been issued against the applicant but he has refused to obey them. Hence, based on the foregoing, the applicant has not acted in good faith. That despite the applicant’s goodwill to pay the decretal sum in instalments now, the respondent is apprehensive that the applicant may not comply with the orders of this court in the event he is granted the orders sought. That the applicant’s proposal to pay the decretal sum in instalments of Kshs 250,000/= and Kshs 1,000,000/= as the initial payment is not acceptable on account of the excruciating wait of twelve years. It is the respondent’s prayer that he be allowed to proceed with the sale of the Applicant’s property known as title No Uasingishu/Kimumu/153. That, in the event this court allows the application, the respondent proposes that the decretal sum of USD 73,257 and Kshs 5,550 be fully paid up within a maximum period of 1 year with the 1st instalment being $32,000 of Kshs equivalent followed by monthly instalments of Kshs 500,000/= on condition that in default, the plaintiff shall be at liberty to execute.

4. On May 10, 2022, this court directed that this application be canvassed by way of written submissions, and the parties obliged.

5. I have read through the application, the affidavits in support and in opposition thereof alongside the submissions by either party or cited case or statute law. I find the issues for determination being:-a.Whether there can be a stay of execution to stop the sale by public auction of all that piece of land known as title No Uasin Gishu/Kimumu/153. b.Whether the applicant can be allowed to pay the decretal sum by instalments of Kshs 1,000,000/= as 1st instalment.

6. Order 21 rule 12 of the Civil Procedure Rules (2010), grants the court power to allow a judgment debtor pay decretal sum by instalments. It provides;“(1)Where and in so far as a decree is for the payment of money, the court may for any sufficient reason at the time of passing the decree order that payment of the amount decreed shall be postponed or shall be made by instalments, with or without interest, notwithstanding anything contained in the contract under which the money is payable.(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.”

7. The court in the case of KTK Advocates v Baringo County Government [2018] eKLR cited with approval the case of Keshval Jethabhai & Brothers Ltd v Saleh Abdul [1959] EA 260, which laid down the principles in considering such applications. It stated;“In the case of Keshval Jethabhai & Brothers Ltd v Saleh Abdul [1959] EA 260, the court stated the principles that should apply in considering such an application, namely, that;1. each case must be considered on its own merit;2. mere inability to pay in full at once is not sufficient reason for exercising the discretion;3. the debtor should show bona fides by arranging prompt payment and that though hardship may be a factor;4. the court has to consider whether indulgence should be given to the debtor without prejudice to the decree holder.”

8. The applicant contends that he is unable to clear the decretal sum in lump sum and proposes that he be allowed to pay a first instalment of Kshs 1,000,000/= and thereafter a monthly instalment of Kshs 250,000/= until payment in full. In the alternative, the respondent has made a proposal of a 1st instalment of $32,000 and monthly instalments of Kshs 500,000/= to be completed within one year on condition that in default, the plaintiff shall be at liberty to execute.

9. The court in the case of Hildegard Ndelut v Letkina Dairies Ltd & another [2005] eKLR held;““a judgment creditor is entitled to payment of the decretal amount, which he should receive promptly to reap the fruits of the judgment. The judgment debtor might genuinely be in a difficult position in paying the decretal amount at once. 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.”

10. It is worth noting that judgment was entered on admission on October 22, 2010. It is twelve years since the judgment was made and the applicant has not made a single payment. As the respondent puts it, there have been several notices to show cause why execution should not issue and the applicant remains unmoved. The respondent’s concern and apprehension is that the applicant may not comply with the orders if granted, are legitimate considering how he has conducted himself in this case. Considering the amount of delay and lack of good faith, I find his proposal is unreasonable in my view.

11. However, since the applicant has shown willingness to pay in instalments, the application is allowed in the following terms;a.The decretal sum to be paid in instalments with the 1st installment being Kshs 2,000,000/= payable within 30 days from the date hereof and a monthly instalment of Kshs 350,000/= until payment in full, in default execution to automatically issue.b.Costs of the application to the respondent.It is so ordered.

DIRECTIONS DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 14THDAY OF OCTOBER, 2022. DO CHEPKWONYJUDGEIn the presence of:Mr Leibor counsel for defendant/applicantM/S Awinja counsel for plaintiff/defendantCourt assistant - Sakina