1.The defendant/applicant herein sought the following orders in the application dated 18th December 2019: -
2.The application is supported by the affidavit of the Chairman of the applicant’s Board of Directors Mr. Francis Ngone Gathiga and is premised on the grounds that: -
3.The respondent opposed the application through a replying affidavit of its General Manager Mr. Satish Kumar Bhatia who states that the parties herein recorded a consent on 21st November 2019 that allowed the respondent to recover the decretal sum before taxation but that the applicant did not, at the time, indicate that it had any difficulties in settling the decretal sum. He avers that the decretal sum continues to accrue interest and that the auctioneer fees is yet to be settled. He opines that in the event that the court considers allowing the defendants application, then it should impose reasonable conditions for stay and proposes that the applicant makes a deposit of Kshs. 5 Million and thereafter monthly installments of Kshs. 1,000,000 until payment in full.
4.Parties canvassed the application by way of written submissions which I have considered alongside the pleadings and the cited authorities. The main issue for determination is whether the applicant is entitled to the orders sought in the application. The applicant seeks orders for stay of execution and to be allowed to defray the decretal sum by way of monthly installments. The applicant invoked Order 21 rule 12 of the Civil Procedure Rules which provides that: -
5.The applicant states that the delay in settling the decretal sum is not deliberate but has been occasioned by financial constraints. The applicant further stated that it had, in the spirit of good faith, deposited Kshs. 500,000 and a further Kshs. 600,00 towards settling the debt. The applicant urged the court to allow it to settle the decretal amount by way of monthly installments of Kshs. 100,000 per month.
6.The respondent, on the other hand, submitted that the applicant had not presented sufficient information to enable the court exercise its discretion in its favour. The respondent observed that while the decretal sum stood at Kshs. 13 Million, the applicant had so far paid Kshs. 600,000 and that the applicant’s further payment of Kshs. 600,00 was through a cheque that was dishonoured.
10.In Keshral Jetha alias & Brothers Ltd vs Saleh Abdul (1959) E.A 260 the court stated as follows regarding the exercise of discretion: -
11.From the above cited cases, it is clear that Order 21 Rule 12 of the Civil Procedure Rules grants the Court the discretion to determine whether the decree can be settled in installments where the parties agree or where the applicant shows sufficient cause. In the instant case, I note that the applicant explained that it expected to generate income through the sale of one of its properties but that the sale collapsed as the proposed purchaser was unable to secure funds from its financiers. The applicant therefore seeks for more time to enable it find an alternative means to settle the debt.
12.My finding is that the applicant has had ample time, since December 2019, to settle the debt. It is noteworthy that the applicant has not demonstrated that it has, since the filing of this application, made any moves towards reducing the debt which continues to accrue interest with every passing day. I am not persuaded that the application has been made in utmost good faith more so considering the fact that it was not disputed that one of the cheques that the applicant sent to the respondent towards settling the decretal sum was not honoured. Furthermore, the decretal sum stands at Kshs. 13,837,657 whereas the applicant has to date has paid only Kshs. 600,000 which I find to be way too low to warrant the exercise of this court’s discretion in the applicant’s favour. Needles to say, the applicant has not shown that it has been paying its proposed monthly installments of Kshs. 100,000 during the pendency of this application as a sign of its commitment and good faith.
13.I find that the applicant’s proposal to pay Kshs 100,000 per month, when weighed against the total decretal sum of Kshs, 13.8 Million, will be untenable, oppressive and prejudicial to the respondent who is entitled to enjoy the fruits of its judgment as it would take more than 10 years to realize the amount owed.
14.I however note that the respondent extended an olive branch to the applicant by proposing that it makes a deposits Kshs. 5,000,000 within thirty days from the date of determination of the application and thereafter settles the balance in monthly installments of Kshs. 1,000,000 till payment in full. I find that the respondent’s proposal is reasonable in the circumstances of this case in view of the fact that the applicant has had more than ample time to put its financial ‘house’ in order.
15.In the upshot, and having found that the applicant did not present sufficient cause to warrant the granting the orders sought, I will nonetheless adopt the respondent’s proposal on settlement of the decree and allow the application on the following terms: -
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT NAIROBI THIS 7TH DAY OF OCTOBER 2021 IN VIEW OF THE DECLARATION OF MEASURES RESTRICTING COURT OPERATIONS DUE TO COVID-19 PANDEMIC AND IN LIGHT OF THE DIRECTIONS ISSUED BY HIS LORDSHIP, THE CHIEF JUSTICE ON THE 17TH APRIL 2020.W. A. OKWANYJUDGEIn the presence of:Mr. Masinde for Plaintiff/RespondentMr. Gakaria for Defendant/ApplicantCourt Assistant: Dennis