[2022] KEHC 186 (KLR)

Wainaina v Aboge (Miscellaneous Application E133 of 2018) [2022] KEHC 186 (KLR) (Commercial and Tax) (14 March 2022) (Ruling)

Neutral citation: [2022] KEHC 186 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Miscellaneous Application E133 of 2018

A Mabeya, J

March 14, 2022

Between

George Wainaina

Applicant

and

Clement Aboge

Respondent

Ruling

1. This is a ruling on the Judgment Debtor’s application dated 21/10/2021. The same is made under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 45, Order 51 and Order 9 Rule 9(a) of the Civil Procedure Rules, 2010.

2. The application seeks that he be allowed to liquidate the decretal sum by making a payment of Kshs. 1 million within 7 days of the date of the application and thereafter Kshs. 250,000/- per month until payment in full.

3. The application is supported by the Judgment Debtor’s supporting and supplementary Affidavits sworn on 21/10/2021 and 8/11/2021, respectively. He avers that a deposit of Kshs. 1,000,000/= was paid to the Plaintiff on 29th October, 2021.

4. That he currently works for gain as the national Executive Director of Kenya African National Union (KANU) and earns a net salary of Kshs. 299,999/= out of which he intends to use Kshs. 250,000/= monthly effective 30/11/2021 towards the settlement of the decretal sum.

5. He further states that he is also in the process of disposing of his properties known as Kijabe/Kijabe Block 1/6929, 6930, 6931, 6932 and 6933; Nakuru LR No. 131281452 and LR No. 131281373, Nyandarua/Kirima/1232 and Konza North Block 2 (Malili) 1673 whose proceeds shall be used to settle the decretal sum. In the alternative, he is willing to transfer the properties to the Decree Holder as part of the settlement of the decretal sum.

6. Further, he noted that if he is committed to civil jail, he will not be able to effectualize the settlement proposal which he anticipates will enable him to pay the entire decretal sum by 30/6/2022. Lastly, he notes that he is willing to comply with any conditions that the court may issue.

7. In opposition, the Decree Holder filed a Notice of Preliminary Objection dated 28/10/2021 challenging this court’s jurisdiction to hear & determine the application on two grounds. Firstly, that the application is res judicata as the matters directly and substantially in issue therein were directly and substantially in issue in the application dated 12/02/2021 which was heard and determined vide this court’s ruling of 19/08/2021. Secondly, that the application is an abuse of court process.

8. Jurisdiction is everything and without it the Court cannot make any step or take any action. This means that the Court must first determine whether it has jurisdiction.

9. On this issue, the Decree Holder submitted that the application offends the doctrine of res judicata as spelt out under section 7 of the Civil Procedure Act. He contended that the Judgment Debtor is merely seeking to re-litigate the issue of stay of execution which was directly and substantially in issue in the application dated 12/2/2021. According to him therefore, the application is a delaying tactic meant to deny or delay him from enjoying the fruits of his judgment.

10. On the part of the Judgment Debtor, it was submitted that whereas both applications sought an interim stay of execution of the warrants of arrest against the Judgment Debtor, the prayers were based on totally different circumstances. He contended that the stay sought in the application dated 12/2/2021 was based on previous unavoidable circumstances that delayed his intention to settle the decretal sum whilst in the application dated 21/10/2021, stay is being sought to enable the Court consider his proposed plan to settle the decretal sum by instalments.

11. Further, the Judgment Debtor submitted that Section 34 of the Civil Procedure Act empowers the Court to hear and determine his latter application since it is the Court that issued the decree being executed.

12. The doctrine of res judicata is set out in Section 7 of the Civil Procedure Act which provides as follows: -“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”

13. In Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others[2017] eKLR, the Supreme Court held as follows: -“Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms;(a)The suit or issue was directly and substantially in issue in the former suit.(b)That former suit was between the same parties or parties under whom they or any of them claim.(c)Those parties were litigating under the same title.(d)The issue was heard and finally determined in the former suit.(e)The Court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”

14. In the same case, the Supreme Court explained the role of the doctrine as:“The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favorable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny. The foundation of res judicata thus rest in the public interest for swift, sure and certain justice.”

15. It is common ground that in the ruling of 19/8/2021, this Court dismissed the Judgment Debtor’s earlier application dated 12/2/2021. It is also common ground that in both the application dated 12/2/2021 and the present one dated 21/10/2021, the Judgment Debtor sought orders for interim stay of execution of the warrants of arrest issued against him on 19/11/2020 and all consequential orders and proceedings thereto.

16. The point of departure however is that this Court granted the interim stay sought in the application dated 12/2/2021 but declined to issue the same in the present application. In my considered view therefore, the Decree Holder’s preliminary objection is effectively spent since it was focused on the order for stay of execution sought by the Judgment Debtor.

17. Further and in any event, it is noteworthy that the issues that were directly and substantially in issue in the earlier application are not the same as those in the present application. In the application dated 12/2/2021, the Court’s main concern was whether the Judgment Debtor had made out a case for the setting aside of the warrants of arrest issued on 19/11/2021.

18. In the instant application, the court shall be grappling with whether the Judgment Debtor is deserving of leave to liquidate the outstanding decretal amount in instalments. The upshot is that the application dated 21/10/2021 is not res judicata on account of this court’s ruling of 19/8/2021.

19. Further, the Court holds the view that the instant application cannot be regarded as an abuse of the court process since it is well within the Judgment Debtor’s rights to approach the Court to seek some sort of indulgence regarding the payment of the decretal sum.

20. I now turn to the merit of the application. Order 21 Rule 12 of the Civil Procedure Rules 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.”

21. From the foregoing, whether or not to allow the settlement of decretal sum in instalments is a matter of Court discretion which must be exercised judiciously. In Keshvaji Jethabhai & Bros Limited v Saleh Abdulla [1959] EA 260, it was held: -“a)Whilst creditors’ rights must be considered, each case must be considered on its own merits and discretion exercised accordingly;b)The mere inability of a debtor to pay in full at once is not a sufficient reason for exercise of the discretion;c)The debtor should be required to show his bona fides by arranging prompt payment of a fair proportion;d)Hardship of the debtor might be a factor, but it is a question in each case whether some indulgence can fairly be given to the debtor without prejudicing the creditor.

22. In Hildegard Ndelut v Letkina Dairies Ltd & Another[2005] eKLR, it was stated that: -“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.”

23. It is not in doubt that the decretal sum of Kshs. 113,005,365. 75 is a colossal amount of money. This arose from the judgment entered against the Judgment Debtor on 6/2/2019 on account of an arbitral award. The Judgment Debtor is ready and willing to settle the amount save that he is not able to do so in lump sum.

24. He has annexed his pay slip for the month of September 2021 showing that he earns a monthly net salary of Kshs. 299,999. 99. Further, it has not been disputed that he paid the Decree Holder Kshs. 1,000,000/= on 29/10/2021 which is a sign of good faith on his part. He also produced title documents for various properties which he claims to be owned by him without requisite searches. He claimed that he intended to sell the said properties and use the proceeds to liquidate the outstanding decretal amount.

25. I note that he indicated that through that strategy, he is to finish settling the decretal sum by 30/6/2022.

26. The Decree Holder no doubt deserves prompt payment of the decretal amount which has been outstanding for three years now. I have taken note of the Judgment Debtor’s amended and/or proposal for settlement as per his supplementary affidavit as well as the annexed letter of 3/11/2021 from his advocates to the Decree Holder’s advocates.

27. He averred that if effectualized, the proposed settlement will enable him to settle the entire decretal sum by 30/6/2022. However, the Court is alive to the fact that the decree has remained unsettled for now over three years.

28. However, the Judgment Debtor did not give an immediate payment proposal which ordinarily acts as a sign of good faith. Since however, he has given a firm undertaking to settle the matter by 30/6/2022, the Court will give him the benefit of doubt and allow his application to settle the decretal amount by instalments as follows: -a.Pay an initial lump sum of Kenya Shillings Thirty Million (Kshs. 30,000,000/-) within 7 days from the date of this ruling. This will take into consideration any payments he has made since November, 2021. b.Thereafter, a sum of Kshs. 20,000,000/- on the last day of each month being, 31/3/2022, 30/4/2022 and 31/5/2022. c.The balance to be paid on or before 30/6/2022. d.In default of any one instalment, the entire sum shall become payable immediately and the warrants of arrest herein shall be revived for execution forthwith.e.Subject to the foregoing, the warrants of arrest herein are hereby suspended.f.The costs of this application will be borne by the applicant.

It is so ordered.DATED AND DELIVERED AT NAIROBI THIS 14TH DAY OF MARCH, 2022. A. MABEYA, FCIArbJUDGE