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ELCDismissedEnvironment & Land Case 30 of 2012· [2022] KEELC 15068 (KLR)

Timothy Nyongesa Masinde & another v Humphrey Wachiye Machasio; Eshikoni Auctioneers (Auctioneer)

Environment and Land Court
24 November 2022
1,927 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The defendant/applicant, Humphrey Wachiye Machasio, moved the Environment and Land Court at Bungoma by notice of motion dated October 13, 2022 seeking stay of execution of the judgment and decree of October 3, 2017, setting aside of warrants of attachment and sale of parcel No E Bukusu/N Sang'alo/2084, and leave to pay the decretal sum of Kshs 6,673,255/= plus interest by a down payment of Kshs 2,500,000/= followed by monthly instalments of the same amount. He relied on Order 42 rule 6(2) CPR, citing substantial loss and willingness to furnish security. The plaintiffs/respondents opposed, contending the application was overtaken by events because execution had taken place, that the court was functus officio having previously granted a stay by consent of February 2, 2022 on condition of full payment within three months (which the applicant defaulted), that the applicant had earlier failed to honour a joint account undertaking of May 12, 2018, and that he came to court with unclean hands. Cherono J held that an application to pay a decretal sum by instalments is discretionary and requires sufficient cause and good faith, applying the Rajabali Alidina conditions. The uncontroverted sworn averments that execution had taken place and that a similar application had been determined weighed against the applicant. The court found the applicant undeserving, the application frivolous, vexatious and an abuse of process, and dismissed the motion with costs.

Key legal issues

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01

Whether stay and instalment payment should be granted

Holding

Application dismissed; applicant not deserving of the equitable remedy

Reasoning

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.

p. 4
02

Whether the court is functus officio

Holding

Effectively yes; the applicant did not controvert the sworn averment that a similar application had been determined

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The notice of motion dated October 13, 2022 is dismissed with costs to the plaintiffs/respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(2)

Cases cited (10)

  • Reliance Bank Ltd v Norlake Investment Ltd
    [2002] 1 EA 227

    Stay of execution principles

  • Focin Motorcycle Co Ltd v Ann Wambui Wangui & another
    [2018] eKLR

    Stay of execution principles

  • E Muiru Kamau & another v National Bank of Kenya Ltd
    [2009] eKLR

    Stay of execution principles

  • James Wangalwa & another v Agnes Naliaka Cheseto
    [2012] eKLR

    Substantial loss in stay applications

  • Erine Campbell & Co Ltd v Githunguri Dairy Plant Co Ltd & anor
    [2009] eKLR

    Exercise of stay discretion

  • Erick V Makhoa & 4 others v Lawrence Sagin & 2 others
    Civil Application No 20 of 1994 (12/94 UR)

    Equitable remedy and conduct of applicant

  • Raila Odinga & 2 others v Independent Electoral & Boundaries Commission & 3 others
    [2013] eKLR

    Cited by respondents

  • Mohammed Shally Sese (Shah Sese) v Fulson Company Limited & another
    [2006] eKLR

    Cited by respondents

  • John Njue Nyaga v Nicholas Njiru Nyaga & another
    [2013] eKLR

    Cited by respondents

  • Rajabali Alidina v Remtulla Alidina & another
    (1961) EA 565

    Conditions for payment of decretal sum by instalments

Jurisdiction invoked
Order 42 rule 6 Civil Procedure Rules (inherent discretion over execution and instalment payments)

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, "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.