Samson Thuranira v Justus Gituma Muguna & 3 others [2021] KEELC 2617 (KLR)
The bottom line
#A Kenyan court refused to excuse a judgment debtor from paying because claiming unemployment after offering to pay is not a valid reason for review.
What this practically means
#Executive summary
#Key legal issues
#Whether economic hardship and unemployment constitute grounds for review under Order 45 rule 1
No. The applicant's prior offer to pay the decretal amount showed he had means, and the cited authorities were distinguishable because in those cases the applicants had not offered to pay and the sums involved were far larger.
The court applied Order 45 rule 1, which confines review to discovery of new and important matter, mistake or error apparent on the face of the record, or other sufficient reason. Since the applicant had earlier offered to settle the decree in instalments, his claim of unemployment was not new matter. The authorities permitting a title deed in lieu of cash were distinguished because the deposit sums there were much larger and no prior offer to pay had been made.
Whether the applicant's conduct in seeking multiple stays in different courts warranted relief
The applicant obtained a conditional stay in Chuka ELC requiring a deposit of Shs.280,000 and failed to comply, and his serial applications amounted to an attempt to avoid liability.
The respondent demonstrated non-compliance with the orders of 4.11.2020 and with the Chuka ELC conditional stay. The court accepted that these serial, unfulfilled applications undermined the applicant's claim of inability to raise the funds and justified refusal of further indulgence, culminating in dismissal of the motion with costs.
Legal principles established
#- A party who had offered to pay a decretal amount cannot later plead unemployment and harsh economic conditions as new grounds for review
- Review under Order 45 requires discovery of new and important matter, mistake or error apparent on the face of the record, or other sufficient reason, without unreasonable delay
Court orders
#- 1.The application dated 17.12.2020 is dismissed with costs to the respondent
- On appeal from
- Meru Chief Magistrate's Court
- CMCC No. 290 of 2014
- Jurisdiction invoked
- Order 45 rule 1 of the Civil Procedure Rules (review); inherent authority over stay of execution of subordinate court decree
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samson Thuranira v Justus Gituma Muguna & 3 others [2021] KEELC 2617 (KLR)", Case Analysis (2021). Notice of motion dated 17.12.2020 (arising from Meru CMCC No. 290 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2617/eng@2021-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.