Timothy Nyongesa Masinde & another v Humphrey Wachiye Machasio; Eshikoni Auctioneers (Auctioneer)
The bottom line
#A Kenyan court refused to let a judgment debtor pay in instalments because he had already defaulted on earlier payment promises and the property had been sold.
What this practically means
#Executive summary
#Key legal issues
#Whether stay and instalment payment should be granted
Application dismissed; applicant not deserving of the equitable remedy
The court applied the Rajabali Alidina conditions for instalment payments. The applicant had defaulted on a consent of February 2, 2022 allowing three months to liquidate the decree, and on an earlier joint account undertaking. Uncontroverted sworn averments showed execution had taken place and a similar application had previously been determined, rendering the court functus officio and the application an abuse of process.
Whether the court is functus officio
Effectively yes; the applicant did not controvert the sworn averment that a similar application had been determined
The respondents deposed that on February 2, 2022 a stay was granted on condition of full payment, the applicant defaulted, and the property was sold by public auction. These averments under oath were not controverted by supplementary affidavit, so the court accepted them and treated the fresh application as an abuse of process.
Legal principles established
#- Before allowing payment of a decretal sum by instalments the court must be satisfied that sufficient cause has been shown and that the applicant has demonstrated good faith
- Guiding conditions for instalment payment are the circumstances of the debt, the debtor's conduct, financial position and bona fides in offering a fair proportion at once
Court orders
#- 1.The notice of motion dated October 13, 2022 is dismissed with costs to the plaintiffs/respondents
- Jurisdiction invoked
- Order 42 rule 6 Civil Procedure Rules (inherent discretion over execution and instalment payments)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Timothy Nyongesa Masinde & another v Humphrey Wachiye Machasio; Eshikoni Auctioneers (Auctioneer)", Case Analysis (2022). Environment & Land Case 30 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15068/eng@2022-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.