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ELCDismissedNot stated in the judgment text· [2024] KEELC 1549 (KLR)

Mwene Muunda Welfare Association (Suing through its Chairman, Secretary and Organizing Secretary) Duncan Kamba, Kavili Mbiti & Muthui Musembi v Kitui County Government & 2 others (Environment & Land Case 200 of 2018) [2024] KEELC 1549 (KLR)

Not stated in the judgment text
13 March 2024
ANA. Nyukuri
629 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 to let judgment debtors pay a debt in instalments because they waited until their property was attached to act.

What this practically means

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Executive summary

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The plaintiffs/applicants, judgment debtors in respect of party and party costs taxed at Kshs. 176,673/= on 22nd June 2022, applied by notice of motion dated 23rd December 2022 for leave to settle the decretal sum in three equal monthly instalments of Kshs. 58,666/= beginning 30th January 2023, and for an order that auctioneers' fees be negotiated, assessed or taxed by the Deputy Registrar. The application, supported by the affidavit of the 3rd applicant, Muthui Musembi, explained that auctioneers instructed by the 2nd defendant had proclaimed the 1st and 2nd applicants' property at their home and place of work, that the notice period had lapsed, and that a special general meeting of the association's members had to be convened to raise the funds. The 2nd defendant, through counsel Martin Mutisya Muthengi, opposed the application, asserting the costs should be paid at once, that the applicants had not explained the delay, and that they rushed to court only after attachment. The court, exercising its inherent jurisdiction under section 3A of the Civil Procedure Act, noted the six-month delay between taxation and the application, for which no explanation was given, and agreed the applicants had acted only after attachment. The application was found not to have been brought in good faith and was dismissed in its entirety with no order as to costs. Judgment was delivered virtually at Machakos on 13th March 2024 by A. Nyukuri, Judge, with no appearance by either party.

Key legal issues

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Whether instalment payment relief should be granted under the court's inherent jurisdiction

Holding

The application was dismissed because it was filed in bad faith, six months after taxation of costs and without explanation for the delay.

Reasoning

The court noted the party and party costs were taxed on 22nd June 2022 and the application was filed on 28th December 2022, six months later. The applicants gave no explanation for failing to convene the special general meeting they claimed was necessary during that period. The court agreed with the respondent that the applicants only moved after their property was attached, and declined to exercise its discretion under section 3A of the Civil Procedure Act in their favour.

p. 2

Legal principles established

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  • Section 3A of the Civil Procedure Act confers inherent power on the court to make orders necessary for the ends of justice and to prevent abuse of the court process
  • A judgment debtor seeking instalment payments must explain delay and demonstrate good faith; an application made only after attachment may be dismissed as not made in good faith

Court orders

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  1. 1.The application dated 23rd December 2022 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 3A
Jurisdiction invoked
Section 3A of the Civil Procedure Act (inherent power)

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, "Mwene Muunda Welfare Association (Suing through its Chairman, Secretary and Organizing Secretary) Duncan Kamba, Kavili Mbiti & Muthui Musembi v Kitui County Government & 2 others (Environment & Land Case 200 of 2018) [2024] KEELC 1549 (KLR)", Case Analysis (2024). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1549/eng@2024-03-13

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