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ELCDismissed· [2021] KEELC 3583 (KLR)

Samuel Mureithi Murioki v Michael Njoroge Gachuhi; Uncle Sam’s Githurai Limited (Third Party); Maiko Investments Limited (Interested Party) [2021] KEELC 3583 (KLR)

Not expressly stated in the judgment (judgment delivered in Nairobi by L. Komingoi, Judge)
22 April 2021
LKL. Komingoi
1,139 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 refused a debtor's request to pay a judgment in instalments because he kept money and property that belonged to the other side.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 21st July 2020 by the plaintiff/judgment debtor, Samuel Mureithi Murioki, seeking leave to settle the decretal amount by a deposit of Kshs.2,000,000.00 followed by monthly instalments of Kshs.200,000.00. The application, brought under sections 1A, 1B and 3A of the Civil Procedure Act and Order 21 Rule 12(2) and Order 51 Rule 1 of the Civil Procedure Rules 2010, was supported by the applicant's affidavit asserting that his hospitality business had suffered under the Covid-19 pandemic, and that he had shown bona fides by paying Kshs.500,000. The defendant/decree-holder, Michael Njoroge Gachuhi, opposed, noting that the outstanding amount stood at approximately Kshs.8,972,910 as at 18th November 2020 and that the proposal would take about 35 months, greatly prejudicing him, especially as the plaintiff continued enjoying premises let to him. The court applied Order 21 Rule 12(2), which permits instalment payments on sufficient cause being shown, and the principles in Keshvaji Jethabhai & Bros Ltd vs Saleh Abdulla requiring demonstration of bona fides by fair payment proposals. Reviewing the record, the court found that the plaintiff had received Kshs.5,920,000 from the defendant under a tenancy agreement for premises on LR NO Nairobi/Block/119/2843, Githurai 44 Estate, yet refused both to hand over the premises and to refund the money, demonstrating bad faith. The instalment proposal was found prejudicial to the defendant's enjoyment of the fruits of his judgment. The court concluded the applicant had not demonstrated entitlement to the discretionary relief and dismissed the application with costs to the defendant.

Key legal issues

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Whether the judgment debtor deserved the exercise of the court's discretion to allow payment of the decree by instalments under Order 21 Rule 12(2)

Holding

The application failed; the judgment debtor did not show sufficient cause or bona fides and his proposal prejudiced the decree-holder

Reasoning

Order 21 Rule 12(2) permits instalment payments upon sufficient cause shown. The record showed the plaintiff received Kshs.5,920,000 from the defendant but refused to hand over the premises or refund the money, demonstrating lack of good faith. His proposal would take about 35 months, depriving the defendant of the fruits of his judgment. The court thus found no basis to exercise its discretion in his favour.

p. 2

Legal principles established

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  • A court may permit payment of a decretal sum by instalments only where the judgment debtor shows sufficient cause and bona fides by arranging fair payment proposals

Court orders

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  1. 1.The notice of motion dated 21st July 2020 is dismissed
  2. 2.Costs of the application to the defendant/respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure Rules 2010Order 21 Rule 12(1) and (2); Order 51 Rule 1

Cases cited (4)

  • Hildegard Ndalut vs Lelkina Dairies Ltd & Another
    [2015] eKLR
  • Abdisalan Abdi Ali Ismail vs Guhart Abdi Ali & 2 Others
    [2019] eKLR
  • Keshvaji Jethabhai & Bros Ltd vs Saleh Abdulla
    [1959] EA 260
  • Sawutram Ramprasad vs Triperal Bank of Indian
    [1933] AIR Nag. 33
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 21 Rule 12(2) and Order 51 Rule 1 of the Civil Procedure Rules 2010

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, "Samuel Mureithi Murioki v Michael Njoroge Gachuhi; Uncle Sam’s Githurai Limited (Third Party); Maiko Investments Limited (Interested Party) [2021] KEELC 3583 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3583/eng@2021-04-22

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