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MagistrateDismissedApplication dated 29/8/2025· [2026] KEMC 130 (KLR)

Kahuki v Badar Hardware & 5 others (Civil Case 363 of 2013) [2026] KEMC 130 (KLR)

Magistrates' Court
26 May 2026
YSY.A Shikanda
2,498 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court refused to let a transport company pay a judgment debt in instalments because it delayed three years and showed no proof it couldn't pay in full.

What this practically means

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Executive summary

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The 1st Third Party, described as a reputable public service transport company, sought leave to liquidate its 60% portion of the decretal sum (outstanding decretal sum of Kshs. 2,055,259/=) by monthly instalments of Kshs. 100,000/=, invoking Order 21 rule 12 of the Civil Procedure Rules, on the ground that execution against its buses would disrupt its business and public service. The plaintifi opposed, arguing bad faith, an unexplained delay of over three years since judgment delivered on 23rd February 2022, absence of any evidence of financial incapacity (no audited accounts, bank records or security), and erosion of the award's value by inflation; he alternatively proposed six monthly instalments. The court framed three issues: whether instalment payment should be allowed, whether the proposed terms were fair and reasonable, and costs. Relying on Order 21 rule 12(2) and established authorities, the court held that the discretion is judicial, the burden lies on the judgment-debtor to show sufficient cause and financial incapacity with tangible evidence, and that equity denies relief to the delayed and bad-faith litigant. Finding the applicant had slept on its rights, made no payments beyond Kshs. 500,000/= ordered by the court, and filed multiple applications to derail execution, the court dismissed the application, gave the applicant 45 days to settle the decretal sum in full with a corresponding stay of execution, failing which the plaintifi may execute, and awarded costs of the application to the applicant (i.e., borne by the applicant).

Key legal issues

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01

Whether the judgment-debtor should be allowed to pay the decretal sum by instalments

Holding

Application dismissed - no sufficient cause shown; the applicant failed to demonstrate financial incapacity or good faith, having delayed over three years since judgment and made no payments

Reasoning

Order 21 rule 12(2) confers discretion to allow payment by instalments on sufficient cause shown. The applicant, a reputable transport company, never claimed or evidenced financial incapacity, offered no security or partial payment, and explained neither the three-year delay since judgment (delivered 23/2/2022) nor the eight-month inactivity after filing. Its conduct, including multiple applications to derail execution, disentitled it from equitable indulgence.

p. 5
02

Whether the proposed instalments of Kshs. 100,000/= per month were fair and reasonable

Holding

The proposal was unreasonable; it would have taken over 21 months to satisfy the decretal sum of Kshs. 2,055,259/= to the prejudice of the decree-holder

Reasoning

The court agreed with the plaintifi that the proposal was unreasonable given the applicant's admitted asset base, the absence of audited financial statements or bank records, and the erosion of the award's value by inflation. The court instead allowed 45 days for payment in full, failing which execution may issue.

p. 5

Legal principles established

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  • The discretion to allow payment by instalments must be exercised judicially and the onus is on the judgment-debtor to show sufficient cause
  • Payment in instalments cannot be allowed as a matter of course; the judgment-debtor must demonstrate financial incapacity with tangible evidence
  • A litigant acting in bad faith or with delay disentitles himself from equitable and discretionary intervention

Court orders

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  1. 1.The application dated 29/8/2025 is hereby dismissed
  2. 2.The applicant to settle the decretal sum within 45 days from today; failure to which the plaintifi shall be at liberty to execute
  3. 3.The costs of the application shall be borne by the applicant
  4. 4.The application dated 27/4/2026 is hereby marked as spent/overtaken by events
  5. 5.There shall be a stay of execution of the decree herein for a period of 45 days from today, to enable the applicant settle what is due and owing from them
Jurisdiction invoked
Order 21 rule 12(2) 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, "Kahuki v Badar Hardware & 5 others (Civil Case 363 of 2013) [2026] KEMC 130 (KLR)", Case Analysis (2026). Application dated 29/8/2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/130/eng@2026-05-26

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