[2017] KEELC 3258 (KLR)
The court found that while the defendant claimed financial hardship and sought to pay the decretal sum by instalments, the plaintiff asserted that a binding consent had already been reached. The court considered the interests of both the decree holder and the judgment debtor, as well as the public interest due to...
Source-derived case information.
- Citation
- [2017] KEELC 3258 (KLR)
- Parties
- Plaintiff: Sugarland Estates Ltd; Defendant: Uchumi Supermarket Ltd
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 120 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Payment of Decretal Sum by Instalments
- Outcome
- application partially allowed
- Legal Topics
- Decretal Sum Payment, Instalment Orders, Consent Judgments, Execution of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sugarland Estates Ltd
Plaintiff
Uchumi Supermarket Ltd
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Payment of Decretal Sum by Instalments
Legal Issues
- 1 Whether the defendant should be allowed to pay the decretal sum and costs by monthly instalments due to financial hardship.
- 2 Whether a binding consent had already been reached between the parties regarding settlement of the decretal sum.
- 3 Whether the defendant's application for instalment payment is made in bad faith.
Ratio Decidendi
The court found that while the defendant claimed financial hardship and sought to pay the decretal sum by instalments, the plaintiff asserted that a binding consent had already been reached. The court considered the interests of both the decree holder and the judgment debtor, as well as the public interest due to Uchumi Supermarket's shareholders. Exercising its discretion under the Civil Procedure Rules, the court allowed the judgment debtor to satisfy the decretal amount in monthly instalments of Kshs.700,000, starting 1st April 2017, with execution to issue in case of default. The court thus balanced the need for enforcement of the judgment with the defendant's financial situation and...
Court Disposition
application partially allowed
Orders
- The judgment debtor is allowed to satisfy the decretal amount in monthly instalments of Kshs.700,000 starting 1st April 2017.
- In default of any instalment, execution to issue.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E & L CASE NO. 120 OF 2016
SUGARLAND ESTATES LTD………………....………..……..PLAINTIFF
VERSUS
UCHUMI SUPERMARKET LTD…………………………....DEFENDANT
RULING
The applicant prays that he be allowed to liquidate the development sum of Kshs.8,888,631. 00 and costs of the suit upon taxation by way of payment of monthly instalments of Kshs.500,000 until payment in full. The applicant claims that he is incapable of immediately paying to the plaintiff the full decretal sum of Kshs.8,888,631. 00 plus costs due to dire financial crisis and liquidity challenges it is currently facing which is of public knowledge.
The applicant seeks to be allowed to liquidate the decretal sum through payment of monthly instalment amounting to Kshs.500,000. It is claimed that the applicant is in the process of implementing a revival plan that will turn around its fortunes.
Mr. Yego filed in replying affidavit stating in essence that the plaintiff and defendant had already agreed and settled the matter and a consent was drawn and approved by the defendant through Mr. Henry Kirwa Bett, the Finance Officer who was representing the Chief Executive Officer in the negotiations. Sadly, all that effort and agreement is being put to waste by the deponent Carol Gaki Mungania who has exposed the defendant to execution through her capricious attitude of approbating and reprobating.
That annexture ZK2 is not draft consent but a final consent agreed upon by the parties following intense negotiations. In fact, the defendant is in possession of a signed copy of the consent which it has deliberately avoided to annex to the application or furnish them with a copy. The defendant’s application is therefore made in bad faith. That the value of the improvements, additions, alterations, equipment and fixtures claimed in prayer (d) of the plaint was given by the defendant as Kshs.73,129,039. 05 hence the party and party costs agreed upon is modest. See annexture ZK3. That the defendant’s application is therefore made in bad faith and lacks merits as the issues raised had already been agree upon. The defendant cannot have their cake and eat it.
I have considered the application and do find that the interest of both Decree holder and Judgment Creditor should be considered and the interest of the public who have SUBSCRIBED TO the shares at Uchumi Supermarket. I do order that the judgment debtor to be and is hereby allowed to satisfy the decretal amount in monthly instalment of Kshs.700,000/= as from the beginning of 1ST April, 2017. For avoidance of doubt the 1st instalment to be paid on 1st of April 2017. In default of any instalment execution to issue. Orders accordingly.
DATED AND DELIVERED AT ELDORET THIS 23RD DAY OF MARCH, 2017.
A.OMBWAYO
JUDGE