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ELCDismissedNot stated in judgment (arising from judgment dated 6th March 2024)· [2024] KEELC 3958 (KLR)

Mwangi Kengara and Company Advocates v Suri (Environment & Land Miscellaneous Case E097 of 2021) [2024] KEELC 3958 (KLR)

Environment and Land Court
16 May 2024
OAO. A. Angote
1,933 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A wealthy Kenyan judgment debtor failed to win permission to pay a debt in instalments because the court found he could afford to pay in full immediately.

What this practically means

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Executive summary

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By a Notice of Motion dated 6th March 2024 brought under Order 21 Rule 12 of the Civil Procedure Rules, the Judgement Debtor, against whom the court had on 6th March 2024 found a debt of Kshs. 525,778.70 owed to his Advocate, sought leave to liquidate the decretal sum in twelve equal monthly instalments and a restraint against execution. He pleaded advanced age (85 years), illiquidity despite a real estate portfolio, Covid-19 business hardship, a Kshs. 1,177,122 monthly overdraft obligation with Barclays Bank, and a Kshs. 34 million decree in ELC Suit No. 738 of 2013. The Decree Holder opposed, asserting he was a man of vast means, had earlier offered only two instalments conditioned on waiving party-and-party costs, and had produced misleading documents. Angote J. framed two issues: instalment payment and stay. Applying Order 21 Rule 12 and the Keshvaji Jethabhai principles as elaborated in Singh Gitau Advocates and Freight Forwarders, the court found the applicant wealthy and capable of paying at once, having offered two instalments in January 2024, so the application, though timely, lacked good faith. The supporting bank offer letter and ELC application were unsigned or undated. On stay, applying Elena Doudoladova Korir (citing Halal v Thornton) and James Wangalwa, mere execution is not substantial loss; no special factors, pending appeal or security were shown, and the debt was admitted. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether the decretal sum should be paid in twelve monthly instalments

Holding

Refused; the Judgement Debtor is a man of means who offered to pay in two instalments earlier, showing lack of good faith

Reasoning

Applying Order 21 Rule 12 and the Keshvaji Jethabhai principles, the court found the applicant wealthy with capacity to pay at once, had offered two instalments in January 2024, and that the supporting documents (bank offer letter, ELC application) were of doubtful authenticity, undermining good faith.

p. 4
02

Whether stay of execution should issue

Holding

Refused; no sufficient cause, substantial loss or security demonstrated, and the debt was admitted

Reasoning

Applying Halal v Thornton via Elena Doudoladova Korir, the applicant must show sufficient cause, substantial loss and furnish security. Beyond the fact of impending execution, no special factors were shown; no appeal was pending and the debt was admitted, so there was no reasonable cause for stay.

p. 4

Legal principles established

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  • In deciding instalment applications the court considers the parties' means, the debtor's bona fides, conduct of the parties and resulting hardship
  • Mere exposure to execution does not amount to substantial loss justifying stay

Court orders

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  1. 1.The application by the Judgement Debtor dated 6th March 2024 is dismissed and disallowed.
  2. 2.No order as to costs.

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 Rule 12

Cases cited (6)

  • Keshvaji Jethabhai & Bros Limited vs Saleh Abdulla
    [1959] EA 260
  • Singh Gitau Advocates vs City Finance Bank Limited
    [2013] eKLR
  • Freight Forwarders Ltd vs Elsek & Elsek (K) Ltd
    (2012) eKLR
  • Elena Doudoladova Korir vs Kenyatta University
    [2014] eKLR
  • Halal & another –vs- Thornton & Turpin Ltd
  • James Wangalwa & Another vs Agnes Naliaka Cheseto
    [2012] eKLR
Jurisdiction invoked
Order 21 Rule 12 of the Civil Procedure Rules

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, "Mwangi Kengara and Company Advocates v Suri (Environment & Land Miscellaneous Case E097 of 2021) [2024] KEELC 3958 (KLR)", Case Analysis (2024). Not stated in judgment (arising from judgment dated 6th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3958/eng@2024-05-16

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