Desterio Nyongesa Wanyama v Gilbert Wesonga Mugeni & another [2021] KEELC 2717 (KLR)
The bottom line
#A Busia court let a businessman pay Kshs.315,076 in taxed costs in five monthly instalments, but stressed debtors must show proof of finances and genuine effort.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant demonstrated sufficient cause for payment by instalments under Order 21 Rule 12
The applicant failed to demonstrate sufficient cause for the terms he sought, but the court exercised its discretion in his favour on modified terms
The court applied the criteria in A Rajabali Alidina v Rehmatulla Alidina as adopted in Freight Forwarders Ltd v Elsek & Elsek (K) Ltd: the circumstances of the debt, the debtor's conduct, financial position and bona fides. The applicant only acted after a warrant of arrest issued, delayed 1½ years after taxation, filed no affidavit of means, and proposed a schedule that would take about 3 years. Yet, taking judicial notice of Covid-19's impact on businesses, the court allowed payment in five equal monthly instalments.
Whether the absence of an affidavit of means defeats an instalment application
Yes; failure to file an affidavit of means weighed against the applicant
The respondent argued, and the court accepted, that a party seeking discretionary relief must demonstrate source of income and inability to pay. The applicant's own counsel submitted he was a businessman of means, undercutting the claim of hardship. The court noted the absence of the affidavit as a ground for declining the relief as sought.
Effect of delay and the debtor's conduct on the discretionary relief
Delay of 1½ years from taxation and inaction until warrants of arrest issued showed conduct insufficient to merit the relief as sought
The court observed the applicant had filed previous applications showing awareness of his obligation, and only took settlement seriously once threatened with committal. The proposed schedule would prolong the decree holder's enjoyment of costs to nearly five years from taxation, which the court found unacceptable, though it still granted relief in the interest of justice.
Legal principles established
#- The power to order payment of a decreed sum by instalments is discretionary and the applicant must show sufficient cause
- Sufficient cause is assessed by considering the circumstances in which the debt was incurred, the conduct of the debtor, his financial position and his bona fides
- A judgment debtor seeking discretionary relief must come to equity with clean hands and demonstrate his financial position, ordinarily by affidavit of means
Court orders
#- 1.The applicant is allowed to settle the taxed costs in five (5) equal instalments effective from 20th July 2021 and on the 20th of every subsequent month
- 2.In default of any one instalment, execution shall issue
- 3.Each party to meet their respective costs of the application
- Jurisdiction invoked
- Order 12 rule 12(1) & (2) of the Civil Procedure Rules and section 3A of the Civil Procedure Act; substantive power under Order 21 Rule 12 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Desterio Nyongesa Wanyama v Gilbert Wesonga Mugeni & another [2021] KEELC 2717 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2717/eng@2021-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.