Automated Summary
Key Facts
The case involves a compensation claim from a 2012 fatal accident case (Nakuru CMCC No. 263 of 2012) where the court initially awarded Kshs. 3,128,141 to the 1st respondent. A 2019 consent agreement required the appellant to pay Kshs. 300,000 monthly installments, but he paid only Kshs. 450,000 before defaulting. The appellant later sought to reduce installments to Kshs. 50,000, which was dismissed by the Subordinate Court in July 2020. The appeal challenged the denial of a conditional stay for payment by installments, but the court found insufficient evidence of substantial loss or financial hardship, ordering 50% of the outstanding amount upfront and Kshs. 100,000 monthly installments instead.
Issues
- Whether the Application meets the conditions for grant of stay of execution, including sufficient cause, demonstration of substantial loss, provision of security, and absence of unreasonable delay under Order 42 Rule 6 of the Civil Procedure Rules.
- Whether the Appellant has satisfied the court that payment of the balance of the decretal amount via installments is tenable, considering factors like circumstances of the debt, debtor's conduct, financial position, and bona fides under Order 21 Rule 12 of the Civil Procedure Rules.
Holdings
- The court ruled that the appellant must pay 50% of the outstanding decretal sum (Kshs. 3,128,141/=) upfront within 30 days, followed by monthly installments of Kshs. 100,000/= until full payment. This was based on the 1st respondent's offer and the court's discretion under Order 21 Rule 12, balancing the appellant's financial hardship with the respondent's right to judgment fruits. Default in payments will trigger execution.
- The court determined that the application for a stay of execution pending appeal does not meet the threshold requirements. The applicant failed to demonstrate sufficient cause, substantial loss from refusal, or provide security as mandated by Order 42 Rule 6. The ruling emphasizes that the applicant did not establish how execution would irreparably harm them or show evidence of the insurer's default, and the application was made without joining the insurer as a party.
Remedies
- The costs associated with this application are to be borne entirely by the applicant.
- The applicant must pay 50% of the outstanding decretal sum (as of the ruling date) to the respondent within 30 days. In default, execution will proceed. The balance is to be repaid in monthly installments of Ksh 100,000, payable by the 11th of each month until full payment.
- The balance of the decretal sum (after 50% upfront payment) is to be repaid in monthly installments of Ksh 100,000, due on or before the 11th day of each month. Default in any installment will trigger execution.
Monetary Damages
3128141.00
Legal Principles
- The court emphasized that a judgment debtor must demonstrate good faith (bona fides) in offering to pay a fair proportion of the debt immediately to justify installment payments. The applicant failed to establish sufficient good faith by not providing evidence of engagement with the insurer or attempts to compel payment.
- The court ruled that the costs of the application should follow the event, meaning the unsuccessful applicant (the appellant) would bear the costs of the proceedings.
Precedent Name
- Kenya Shell Limited -V- Kariga
- Republic Vs The Commissioner For Investigation & Enforcement Exparte Wananchi Group Kenya Limited
- Sun Palm Limited & Another Vs David Pius Mugambi
- Botanics Kenya Ltd Vs Ensign Food (K) Ltd
- Keshvaji Jethabhai & Bros Limited V Saleh Abdulla
- Surgipharm Ltd Vs Express Kenya Ltd & Kenya Airways Ltd - Third Party
- Carter & Sons Ltd Vs Deposit Protection Fund Board
- James Wangalwa & Another vs. Agnes Naliaka Cheseto
- Kenya Shell Limited
Cited Statute
- Civil Procedure Rules 2010
- Civil Procedure Act
Judge Name
Mumbua T Matheka
Passage Text
- In the instant case the applicant has not established other factors which show that the execution will create a state of affairs that will irreparably affect or negate his very essential core should he be the successful party in the appeal.
- a) Whilst creditors' rights must be considered each case must be considered on its own merits and discretion exercised accordingly; ... 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.
- 1. That the applicant to pay 50% of the outstanding decretal sum as at the date of this ruling to the applicant within 30 days hereof... 2. Thereafter to continue repaying the balance in monthly instalments of Ksh 100,000... 3. The costs of this Application be borne by the Applicant.