Amir Suleiman v Amboseli Resort Limited [2015] eKLR

Key Facts

Issues

• The Applicant seeks to pay the judgment in instalments (Kshs.900,000/= initial payment and Kshs.100,000/= monthly), but the Respondent objects, arguing the proposal lacks sufficient cause and genuine financial hardship. The court assesses whether instalments should be granted under Section 26 of the Civil Procedure Act.
• The court interprets the judgment's silence on interest under Section 26 of the Civil Procedure Act. The issue involves whether interest should be applied from the date of the suit to the decree and further at 6% per annum post-decree, as per statutory defaults.
• The Applicant disputes the execution warrants reflecting an excess of Kshs.7,000,000/= over the judgment amount of Kshs.5,625,000/=. The issue centers on whether the proclaimed sum is correct, considering already paid costs and potential errors in the decree.
• The Applicant claims the decretal sum constitutes double payment of rent, as he had previously paid Wildlife Lodges/Ketain Somalia. The Respondent counters that the judgment declared the Applicant a trespasser, negating this claim.

Holdings

• The application for a stay of execution pending the hearing was not granted. The Respondent is permitted to apply for fresh execution warrants to enforce the judgment. The court emphasized that the Applicant failed to demonstrate genuine financial hardship or provide evidence to support their instalment proposal, which would have taken over nine years to settle the debt.
• The court found that the proclamation made on 12th September 2013 was incorrect and contained errors. The judgment was entered in favor of the Defendant/Respondent for Kshs.5,625,000/= plus costs, but the execution warrants erroneously included an excess of approximately Kshs.7,000,000/=. The costs of Kshs.317,491/= had already been paid, and the Applicant's proposal to pay the decretal sum in instalments (Kshs.900,000/= initial payment and Kshs.100,000/= monthly) was dismissed as lacking bona fides. The court determined the proposal unreasonable due to insufficient evidence of the Applicant's financial position and the extended time required to settle the debt.
• The court ordered that each party shall bear their own costs for the application. The Applicant's previous application for a stay of execution filed on 27/4/2010 remains unprosecuted, and the Respondent accused the Applicant of failing to disclose material facts in the current application.
• The court ruled that the judgment was silent on interest, which under Section 26 of the Civil Procedure Act implies a deemed interest rate of 6% per annum. The Applicant's claim of double payment of rent was rejected, as the judgment established the Applicant as a trespasser, and no appeal has been pursued since the Notice of Appeal was filed on 5/5/2010.

Remedies

• The Respondent is at liberty to apply for fresh execution warrants, considering the errors found in the original proclamation, to ensure the correct amount is enforced.
• The court ordered that each party shall meet their own costs related to this application, given the circumstances of the case.
• The court ruled that the proclamation made on 12th September 2013 is incorrect and contains errors, as the Applicant disputed the amount reflected in the execution warrants.
• The court dismissed the Applicant's request to pay the decretal sum in instalments, finding the offer unreasonable and lacking evidence of the Applicant's financial constraints, as the proposed initial payment was not a fair proportion of the debt.

Monetary Damages

Legal Principles

• The applicant claimed double payment of rent, arguing that payments made to Wildlife Lodges/Ketain Somalia should count toward the judgment. The court found this issue had already been addressed in the original judgment and no appeal was filed to challenge it.
• The court emphasized that a judgment debtor must demonstrate good faith (bona fides) by offering to pay a fair proportion of the debt immediately to justify instalment payment. The applicant's proposal to pay Kshs.900,000 initially was deemed insufficient and lacked credible evidence of financial hardship.

Precedent Name

• Victoria Commercial Bank Ltd -v-s Charles Lutta Kasamani
• Kshevji Jethabai & Brothers Limited -vs- Saleh Abdulla

Cited Statute

Judge Name

Passage Text

• The Applicant's complaint is that the warrants of execution erroneously reflect the sum due as Kshs.12,188,665/= According to the Applicant, there was an excess of about Kshs.7,000,000/=
• I arrive at the finding that the sum proclaimed is incorrect and that there are errors in the proclamation made on 12/9/2013... The Respondent is at liberty to apply for fresh execution warrants.
• The Applicant has also contended that the execution warrants include the amount due as costs when the same have already been paid.