https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/309

**REPUBLIC OF KENYA** **IN THE COOPERATIVE TRIBUNAL AT NAIROBI** **CTC NO. E559 OF 2025** **(Coram: Hon. J. Mwatsama- Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.)** **MWANZIA MNYALO SOMBI ………………………………..1ST CLAIMANT** **TERESIAH NYAWIRA MAINA………………………………..2ND CLAIMANT** **WINNIE MUSYOKA …………………………………………..3RD CLAIMANT** **CHARLES KIRIRO MULWA…………………………………....4TH CLAIMANT** **PETER NYAMASYO MULWA………………………………… 5TH CLAIMANT** **JOSEPH MUSYOKI…………………………………………….6TH CLAIMANT** **BOSCO CHESIYWO…………………………………………..7TH CLAIMANT** **KEVIN CHAVULIMA…………………………………………..8TH CLAIMANT** **JAPHETH AGGREY MUKAMBI…………………………….....9TH CLAIMANT** **VERSUS** **ACKWRIGHT RICHARD SHIMELA………………………….…RESPONDENT** **RULING** **Background.** 1. The claimants and the respondent are members of Kentours Savings & credit cooperative society ltd. On various dates the Respondent applied for different types of loans from the Sacco. It is a policy of the Sacco that every loan application must be guaranteed by another and or other members before the loan is approved and dispersed. In tandem with the practice, the respondent approached the 1st to the 9th claimants herein to be his guarantors for the diverse loan facilities that he borrowed as follows: 1. On 26/06/2023 he borrowed Ksh140,000/=. 2. He borrowed instant loan on 16/10/2023 of Ksh 140,000/=. 3. He borrowed normal Loan on 14/11/2023 of Ksh 596,300/=. 4. He borrowed school fees Loan on 7/2/2024 of Ksh 151,000/=. 5. He borrowed super school fees loan on 11/4/2024 for Ksh 282,400/=. The Claimants state that when the Respondent defaulted to repay the loan, the sacco recovered the outstanding balance from them based on the amount each of the claimants had committed in the loan application form. 1. The C laimants filed a statement of claim dated 18th June 2025 against the respondent and sought for judgement for the refund of Ksh 842,206.91. Upon being served on 3rd July the respondent filed a memorandum of appearance on the same day and appointed the firm of Ochieng Omolo & Co. Advocates to represent him. 2. When the respondent failed to file a statement of defence and failed to attend the scheduled mentions, the claimants filed an application dated 14th August 2025 and requested for judgement. On 29th February 2026, the tribunal entered summary judgement in favour of the claimant against the respondent for refund of Ksh 842,206.91 plus cost and interest. A decree dated 12/3/2026 was extracted and warrants of attachment dated 01/4/2026 was issued. 3. Vide a Notice of motion dated 30th April 2026 which was filed under a certificate of urgency the respondent seek for the following orders; 4. ***Spent*** 5. **That pending the hearing of this application, there be a stay of execution of the decree herein.** 6. **That the respondent be allowed to liquidate the balance of the decretal sum and costs by way of monthly instalments.** 7. **That the cost of this application be provided for.** 8. The Notice of motion is supported by an affidavit sworn by the respondent and premised on the ground that he is not in a position to settle the decretal sum of ksh1,043085.91 in a lump sum but willing and able to settle it in instalments. Further, he stated that he is apprehensive that Favor Auctioneers who had proclaimed his personal effects may proceed to break into his premises if the order for stay of the execution is not granted. 9. On 4th June 2026, the tribunal directed the claimants and the respondent to canvas the matter by way of written submission. However, by the time of writing this ruling, it is only the claimants who had filed their submissions while the respondent had not filed any document. **ISSUES** 1. Having considered the Respondents application, its grounds and the grounds contained in his supporting affidavit and having considered the claimants opposition in the replying affidavit dated 15th May 2026, two (2) issues emerge for our determination: 2. Whether the respondent has established his case to warrant the stay of execution of the decree? 3. Who should bear the cost of the application. **ANALYSIS** 1. The law that govern the stay of execution of a decree is provided under Order 42 Rule 6(2) and provides as follows: **“No order for stay of execution shall be made under the sub rule (1) unless:** 1. **The court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay: and** 2. **Such security as the court orders for due performance of such decree or order as may ultimately be binding on him has been given by the applicant”.** 3. On the face of the grounds contained in the notice of motion, the Respondent/applicant started by confirming that the decretal sum of ksh1,043.685.91 was awarded to the claimant and that he is not in a position to settle the decretal sum in a lumpsum due some financial constraints. Under paragraph (d) of the same grounds the respondent state: “*That he is willing and able to pay the remainder of the decretal sum and only seeks to be granted leave to liquidate the balance by way of monthly instalments”* 1. This is a clear admission of liability or admission of the debt owed to the claimants by the respondent. It explains why the respondent/applicant did not file a defence or dispute the decretal sum in the application. Such admission is in line with the decision of the court in the case of***Guardian Bank Limited v Jambo Biscuits Kenya Limited***[2014] eKLR where the court held as follows; “(7) **Back to the main course of things. The principle applicable in judgment on admission is that the admission must be very clear and unequivocal on a plain perusal of the admission. The admission in the sense of Order 13 Rule 2 of the Civil Procedure Rules is not one which requires copious interpretation or material to discern. It must be plainly and readily discernible. In such clear admission, like J.B. Havelock J stated in the case of 747 Freighter Conversion LLC v One Jet One Airways Kenya Ltd & 3 Others HCCC No. 445 of 2012, there is no point in letting a matter go for a trial for there is nothing to gain in a trial”.** 1. The respondent’s prayer is that he be allowed to settle the decretal sum in instalments because he is financially constrained to pay the total amount in a lumpsum. **Order 21 Rule 12** is the guiding law on payment of decretal sum by instalments but the tribunal hasten to state that a party who wishes to use this law must present concrete, verifiable proof of financial statement because a mere statement that he lacks lumpsum yet willing to pay in instalment is insufficient on its own. The tribunal place reliance in the recent case of **Nahashon Maina & 5 Others v Central Park Hotel (2022) KEELRC 818(KLR**) where the court stated as follows: “***The orders provided for under Order 21 Rule 12 of the Civil Procedure Rules are discretionary and the Court is enjoined to exercise its discretion on the basis of the facts and circumstances presented before it by the Applicant being aware that a decretal sum remains unsatisfied and the claimants have a judgment in their favour***”. 1. While the tribunal sympathises with the hardship that the respondent is going through, the tribunal has a mandatory duty to balance the decree-holders rights, the prejudice caused against the Respondent/applicant unproven financial hardship. On this the tribunal is persuaded by the decision of the court in the case of **Lavington Security limited, Hildegard Ndelut –v Letkina Dairies Limited & another [2005]** eKLR where the court 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.”*** 1. The tribunal agrees with the claimants that the respondent/applicant was awaken by the proclamation notice after ignoring the service of the tribunal’s documents served on 3rd July 2025 only to file an application and seek to repay the decretal sum by instalment. However granted the request, the tribunal is guided by the holding of the court in the case of African Banking **Corporation Limited v Florence Wangari Wangai [2012] eKLR** which held 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/he has is lawfully committed elsewhere. He/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 order sought”.*** 14. In the circumstances the Respondent/applicant did not disclose or provide evidence of his monthly income, his monthly commitments and how much fair proportion of the decretal sum that he is ready to pay. The proposal to pay ksh20,000/= per month is rejected by the claimants which we agree with them because it would take 4years and 3 months to complete the payment which we consider would further delay the Claimants enjoyment of the fruits of the judgment. 15. To this end it is our view that failure to demonstrate a genuine mode of payment is a sign that the Respondent/applicant is not serious to refund the claimants the amount deducted by the Sacco in satisfaction of the loan defaulted by him. This persuades us that the Respondent/applicant does not deserve the tribunal discretion to grant the orders sought there being no sufficient cause, no good faith and it having not proposed a fair portion to be paid to the claimants. 16. Because the Respondent did not provide evidence of his inability to pay in full the decretal sum apart from pleading hard economic times and re-arrangement of finance, we find that those unsubstantiated statements do not constitute sufficient cause. It is therefore our opinion that the Respondent should pay the claimants ksh1,043685.91 in lumpsum promptly failure to which execution should proceed. 17. In conclusion the tribunal finds that the Respondents Notice of Motion application dated 30th April 2026 is found to be without merit and is hereby dismissed in totality with costs to the Claimant. Ruling dated and delivered *virtually* at **Nairobi** this **16th** day of **July, 2026.** **Hon. J. Mwatsama Chairperson****signed 16.7.2026** **Hon. Beatrice Sawe Member signed 16.7.2026** **Hon. Fridah Lotuiya Member signed 16.7.2026** **Hon. Michael Chesikaw Member signed 16.7.2026** **Hon. P. Aol Member signed 16.7.2026** Tribunal Clerk Mutai