Automated Summary
Key Facts
The case involves a dispute over the enforcement of a Kshs.5,625,000 judgment for mesne profits in favor of Amboseli Resort Limited against Amir Suleiman. The Applicant sought payment by instalments (Kshs.900,000 initial payment followed by monthly Kshs.100,000) citing financial hardship, but the court dismissed the application, finding no bona fides and noting the initial payment was insufficient relative to the total debt. The judgment was silent on interest, leading to discrepancies in execution warrants, and the court identified errors in the approved decree which failed to account for interest requirements under Order 21 rule 8(2). Costs of Kshs.317,491 had already been paid by the Applicant.
Issues
- The second issue addresses the Applicant's request to pay the decretal sum in instalments. The court must assess whether the Applicant demonstrated sufficient cause (financial hardship) and bona fides to justify instalment payments, particularly given the lack of evidence supporting their financial claims and the unreasonable payment timeline proposed.
- The first issue concerns the incorrect inclusion of interest in the approved decree, which contravenes the judgment's silence on interest and results in an overpayment of approximately Kshs.7,000,000/=. The court must determine whether the decree accurately reflects the judgment and whether the Respondent can seek correction of the proclamation error.
Holdings
- The court found that the proclamation made on 12th September 2013 was incorrect and contained errors, particularly regarding the approved decree not conforming to the judgment. The judgment was silent on the question of interest, leading to discrepancies in the execution warrants.
- The application for payment by instalments was dismissed as unreasonable and lacking bona fides. The court determined that the initial payment of Kshs.900,000/= did not constitute a fair proportion of the debt, and the Applicant failed to disclose their financial position or provide evidence of cash flow constraints.
Remedies
- The court dismissed the Applicant's request to pay the decretal sum in instalments as it found the offer unreasonable and lacking in bona fides.
- The Respondent is at liberty to apply for fresh execution warrants to correct the errors in the previous proclamation.
- Each party is to meet their own costs of this application as per the court's ruling.
- The court found that the proclamation made on 12th September 2013 was incorrect and contained errors.
Monetary Damages
5625000.00
Legal Principles
The court relied on established principles for granting payment by instalments, emphasizing the need for the debtor to demonstrate bona fides by paying a fair proportion immediately and showing sufficient cause for delayed payment. These principles were derived from case law such as Kshevji Jethabai & Brothers Limited v. Saleh Abdulla (1959) E.A. and Victoria Commercial Bank Ltd v. Charles Lutta Kasamani (H.C. Misc. Case No. 288 of 1997). The judgment also considered the financial position of the debtor and the reasonableness of the instalment proposal.
Precedent Name
- Kshevji Jethabai & Brothers Limited -vs- Saleh Abdulla
- Victoria Commercial Bank Ltd -vs- Charles Lutta Kasamani
Cited Statute
Civil Procedure Act
Judge Name
B. Thuraniro Jaden
Passage Text
- "14. In the instant case, the Applicant has offered to pay Kshs.900,000/= at once and instalments of Kshs.100,000/= until payment in full. Considering that the judgment was entered almost five years ago and that it would take many more years to liquidate the decretal sum if the said proposal was accepted, the offer is not reasonable and lacks bona fides. Kshs.900,000/= is not a fair proportion of the debt."
- "15. With the foregoing, I arrive at the finding that the sum proclaimed is incorrect and that there are errors in the proclamation made on 12/9/2013. I find no merits in the application for payment by instalments and dismiss the same. The Respondent is at liberty to apply for fresh execution warrants."
- "26. (1) Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit. Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum."