Wanjiru & another (As Legal Representatives of Arthur Nyanjui Gichui) v Gitau (Land Case 103 of 2012) [2022] KEELC 2402 (KLR)
The bottom line
#A Nakuru land court refused a repeat request to pause case proceedings but let the losing party pay court-awarded costs in monthly instalments, provided they pay Kshs 100,000 upfront.
What this practically means
#Executive summary
#Key legal issues
#Res judicata as regards stay of execution
Prayer for stay of execution was res judicata, having been determined in the ruling of 28/1/2021 which granted conditional stay that lapsed on the applicants' default
The court perused its own record and found an earlier application dated 15/10/2020 seeking stay of execution of the judgment of 24/9/2020 was adjudicated in a ruling of 28/1/2021 granting conditional stay requiring deposit of taxed costs within 21 days of taxation. The costs were taxed on 19/5/2021 but not deposited, so the stay stood dismissed. The same issue could not be relitigated.
Payment of taxed costs by instalments
A fresh issue not previously raised; the court has discretion to allow payment by instalments, balancing creditor's and debtor's rights, but requires a lumpsum down payment as evidence of bona fides
The instalment prayer was not part of the earlier application and the respondent did not specifically oppose it. Following Keshvaji Jethabhi & Bros v Saleh Abdulla, A. Rajabali Alidina v Remtulla Alidina and Hildegard Ndalut v Lelkina Dairies, the discretion must be exercised judicially, requiring the debtor to show bona fides by paying a fair proportion upfront. Considering the plaintiffs inherited a family dispute with an appeal and attendant costs, a Kshs. 100,000/= lumpsum within 30 days followed by monthly instalments of not less than Kshs. 50,000/= was adequate.
Legal principles established
#- The court has discretion to order settlement of a decree by instalments where circumstances permit, to be exercised judicially, balancing the rights of judgment creditor and debtor
- A judgment debtor must demonstrate bona fides by arranging prompt payment of a fair proportion of the debt before instalments are granted
- An application for a prayer already adjudicated is res judicata
Court orders
#- 1.Prayer no 3 of the application dated 24/3/2022 (stay of proceedings pending appeal) is dismissed as res judicata
- 2.Prayer no 4 granted subject to a lumpsum down payment of Kshs. 100,000/= within 30 days of the order
- 3.The applicants shall defray the rest of the taxed costs by instalments of not less than Kshs. 50,000/= each calendar month before the 30th day of each month with effect from 1/7/2022, and in default execution of any pending balance may issue at the discretion of the decree holder
- 4.The costs of the application shall be borne by the applicants
- Jurisdiction invoked
- Inherent discretion under the Civil Procedure Act and Order 21 Rule 12(2) of the Civil Procedure Rules (payment of decree by instalments); the court's prior stay jurisdiction in the suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanjiru & another (As Legal Representatives of Arthur Nyanjui Gichui) v Gitau (Land Case 103 of 2012) [2022] KEELC 2402 (KLR)", Case Analysis (2022). Not stated in the extract (application dated 24/3/2022 in an ELC suit at Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2402/eng@2022-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.