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ELCPartially AllowedMiscellaneous Application E057 of 2021 (Civil Case No. 507 of 2013)· [2023] KEELC 19186 (KLR)

Mugendi Karigi & Co. Advocates v Doric Industries Limited

Environment and Land Court
31 July 2023
MMM.D. Mwangi
1,718 words in judgment
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The bottom line

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A Kenyan court let a company pay a Ksh 5.7 million legal fees debt in installments, but on stricter terms than it asked for because it had paid nothing so far.

What this practically means

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Executive summary

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Doric Industries Limited (Client/Applicant) moved the Environment and Land Court at Nairobi by Notice of Motion dated 16th May 2023, under Sections 1A and 3A of the Civil Procedure Act and Order 21 Rule 12(2) and Order 22 Rule 22 of the Civil Procedure Rules, 2010, seeking to pay the decretal amount of ksh 5,735,020.76 due to its former advocates, Mugendi Karigi & Co. Advocates, by installments: ksh 500,000/= by end of July 2023 and ksh 300,000/= quarterly thereafter. The Applicant deponed, through Francis J. Ngigi, that it suffered financial hardship following an unlawful eviction in which it lost goods valued at over ksh 106 million, its business capacity fell to 20%, and four other taxation matters were pending. The Advocate opposed through a replying affidavit by Morris M. Karigi, terming the application defective and an attempt to stall execution, noting the proposal would take over 53 months, and proposing instead a ksh 2,000,000/= lump sum plus monthly installments of ksh 500,000/=. The court framed a sole issue: whether the Applicant should be allowed to pay by installments. Applying Order 21 Rule 12 and the principles in Botanics Kenya Ltd, Freight Forwarders Ltd and Keshvaji Jethabhai & Bros, the court held the Applicant bore the burden of showing sufficient cause and bona fides. Noting that the Applicant had made no payments since the taxation on 4th July 2022 and had rejected the Advocate's compromise, the court granted installment relief on its own terms: 20% of the decretal amount by 31st August 2023, then quarterly installments of ksh 500,000/= from 30th November 2023, with liberty to execute on default, and costs of the application to the Applicant.

Key legal issues

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Whether the judgment debtor should be permitted to satisfy the decretal sum by installments

Holding

The application was allowed on terms set by the court: a 20% lump sum payment followed by quarterly installments of ksh 500,000/=, with liberty to execute on default

Reasoning

The court applied Order 21 Rule 12 and the principles in Botanics Kenya Ltd, Freight Forwarders Ltd and Keshvaji Jethabhai & Bros. It weighed the debtor's hardship against the decree holder's right to enjoy the fruits of judgment. The Applicant's failure to make any payment since taxation and its rejection of the Advocate's compromise proposal meant it had not shown the bona fides required, so the court crafted its own balancing terms rather than granting the Applicant's proposal.

p. 4

Legal principles established

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  • The court has discretion to allow payment of a decree by installments where sufficient cause is shown, to be exercised judicially and in the interest of justice
  • The burden lies on the applicant to justify the court's exercise of discretion in its favour when seeking installment payments

Court orders

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  1. 1.The Client/Applicant to pay 20% of the decretal amount to the Advocate/Decree Holder by 31st August, 2023
  2. 2.The balance to be paid in equal installments of ksh 500,000/= after every three months, the first installment due on or before 30th November, 2023, and thereafter on or before the last day of every third month until payment in full
  3. 3.In case of default, the decree holder to be at liberty to execute without any further reference to the court
  4. 4.The costs of the application to be borne by the Applicant
Jurisdiction invoked
Sections 1A and 3A of the Civil Procedure Act, Cap 21; Order 21 Rule 12(2) and Order 22 Rule 22 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, "Mugendi Karigi & Co. Advocates v Doric Industries Limited", Case Analysis (2023). Miscellaneous Application E057 of 2021 (Civil Case No. 507 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19186/eng@2023-07-31

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