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ELCAllowedApplication dated 8/2/2018· [2018] KEELC 3590 (KLR)

Robert Mukarani Simiti & 2 others v Peter Badhia & 3 others [2018] KEELC 3590 (KLR)

Environment and Land Court
25 April 2018
989 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed a party owing taxed costs of Kshs.672,110 to pay in instalments, but any missed payment allows immediate seizure of assets.

What this practically means

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Executive summary

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The plaintiffs, against whom costs of Kshs.672,110/- had been taxed after the defendants prevailed in the main suit, applied by notice dated 8/2/2018 for leave to pay the taxed costs in instalments: an initial lump sum of Kshs.300,000/- followed by monthly instalments of Kshs.50,000/-, citing financial constraints. The defendants opposed through grounds of opposition dated 19/2/2018, arguing the application was intended to delay justice, that nothing had been paid in the four months since taxation, that no sufficient cause was shown, and that the plaintiffs had been found to be of dishonest intent in bringing the suit. Both sides relied on Maasai Kenya Ltd -vs- Hardware & Steel Centre Ltd & Another. The plaintiffs invoked Order 21 Rule 12 and urged the Keshavji Jethabhai test that a judgment debtor show bona fides by arranging fair payment of a proportion of the debt; the defendants cited Alidina -vs- Remtulla Alidina on the judicial exercise of the discretion and the burden on the debtor. Mwangi Njoroge J held that the taxed costs were not a debt owed before the suit but costs awarded at the court's discretion at the end of uncertain litigation, and that the court must apply the instalment-payment principle regardless of the earlier finding of dishonesty. Finding the proposed lump sum and instalments fair, the court allowed the application in terms of prayer 2, ordered payment of Kshs.300,000/- within 7 days, monthly payments of Kshs.50,000/- from May 2018, and provided that any default would void the arrangement and entitle the defendants to instant execution without further recourse to litigation.

Key legal issues

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01

Whether instalment payment of taxed costs should be allowed

Holding

Yes. The court found the proposed lump sum of Kshs.300,000/- and monthly instalments of Kshs.50,000/- fair, noting the sum was costs awarded after litigation rather than a debt owed before the suit, and applying the bona fides test from the cited authorities.

Reasoning

The court applied the test in Maasai Kenya Ltd and Keshavji Jethabhai & Brothers, that a judgment debtor must show bona fides by arranging fair payment of a proportion of the debt. It held the taxed costs were not a pre-existing debt but costs awarded at the court's discretion at the end of uncertain litigation, and found no good reason to believe the proposed sums were not fair, while safeguarding the defendants through a default clause permitting instant execution.

p. 2
02

Whether the defendants' allegations of the plaintiffs' dishonesty in the litigation should defeat the application

Holding

No. The court held it must focus on the instalment-payment principle regardless of the plaintiffs' alleged dishonesty found in the main judgment.

Reasoning

The defendants urged the court to deny the indulgence because the plaintiffs had been found to be of dishonest intent in bringing the suit. The court acknowledged the defendants obtained the costs of the litigation but held that the governing principle from Maasai Kenya Ltd had to be applied regardless of the prior finding on honesty, and that it could not assume the plaintiffs were able to pay in a lump sum merely because the constraints were not proved.

p. 2

Legal principles established

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  • The proper test in granting orders for payment of a decretal amount by instalments is whether the judgment debtor has shown bona fides by arranging fair payment proposals for a proportion of the debt.
  • The court's discretion to order payment of the decretal amount in instalments must be exercised judicially and not arbitrarily, and the onus is on the defendant/judgment debtor to show entitlement to the indulgence.

Court orders

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  1. 1.The application dated 8/2/2018 is granted in terms of prayer 2
  2. 2.The sum of Kshs.300,000/- if not paid by then shall be paid within 7 days of the Ruling
  3. 3.The instalments of Kshs.50,000/- shall be paid on or before the 15th day of every month with effect from May, 2018 (that month inclusive) till the full amount is fully liquidated
  4. 4.Any default in compliance shall render the instalment arrangement void and entitle the defendants to instant execution against the plaintiffs for the sum outstanding as at the date of default without further recourse to litigation

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 Rule 12
  • Civil Procedure Code (as referenced within quoted passages of authorities)not specified

Cases cited (5)

  • Hildegard Ndalut -vs- Lelkina Dairies Ltd & Another
    2005 eKLR
  • Maasai Kenya Ltd -vs- Hardware & Steel Centre Ltd & Another
    2013 eKLR
  • Keshavji Jethabhai & Brothers Limited -vs- Saleh Abdulla
    [1959] EA 260
  • Sawatram Ramprasad -vs- Imperial Bank of India
    [1933] AIR Nag. 33
  • Alidina --vs- Remtulla Alidina & Another
    [1961]
Jurisdiction invoked
Order 21 Rule 12 of the Civil Procedure Rules (invoked by the plaintiffs for the prayers)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Robert Mukarani Simiti & 2 others v Peter Badhia & 3 others [2018] KEELC 3590 (KLR)", Case Analysis (2018). Application dated 8/2/2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3590/eng@2018-04-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.