Robert v Mwikya (Civil Case E039 of 1000) [2026] KEMC 523 (KLR)
The bottom line
#A Kenyan court allowed a judgment debtor to pay a road accident debt of Kshs. 223,616 in monthly installments of Kshs. 25,000, pausing execution so long as payments continue.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the firm of Kinyua Musyoki is properly on record and/or has audience herein
- 2.Whether this court is functus officio
- 3.Whether the applicant has established grounds for grant of the orders of payment by installments
Key legal issues
#Audience of incoming advocate post-judgment
The firm of Kinyua Musyoki & Co. Advocates is properly on record and has audience because it joined to act jointly with the previous firm rather than taking over, so leave/consent under Order 9 Rule 9 was not mandatory.
The court noted the record shows no notice of change of advocates. The applicant explained he filed an appointment to act jointly with Kimondo Gachoka & Co. Advocates, not a takeover. Applying Order 9 Rule 9 and Speed Wall Building Technologies, the court held the leave/consent requirement was not mandatory in the circumstances, so the firm could prosecute the application.
Functus officio
The court is not functus officio; this is the first application for stay, and the installment application is being considered for the first time.
Judgment was delivered on 25/11/2024 and the record shows no stay was ever issued at or after delivery. The respondent's contention that stay orders are granted only once and that finality extends to warrants of attachment did not apply because no prior stay existed; further, the application principally seeks settlement by installments.
Payment by installments
The applicant established sufficient cause under Order 21 Rule 12(2); stay and installment payment of Kshs. 25,000/= per month granted with execution to issue on default.
The court applied the Rajabali Alidina factors: the debt arose from a road traffic accident, not a contractual debt foreseeable at a definite time; the debtor showed good faith by offering to pay in full within six months; and he demonstrated financial strain through other decrees. No prejudice to the decree-holder's enjoyment of the judgment was demonstrated. The insurer-indemnity argument failed since execution was sought against the applicant personally.
Legal principles established
#- Where an incoming advocate files an appointment to act jointly with the firm already on record rather than taking over the matter, the leave or consent requirements of Order 9 Rule 9 are not mandatory and the firm has audience.
- A court is not functus officio to entertain a first application for stay of execution or for payment by installments where no stay was previously granted.
- In an application for payment by installments the court considers the circumstances under which the debt was contracted, the conduct of the debtor, his financial position and his bona fides in offering a fair proportion of the debt.
Court orders
#- 1.A stay of execution of Judgment dated 28/11/2024 and decree dated 25/6/2025 be and is hereby issued
- 2.The Defendant/Applicant be and is hereby allowed to settle the decretal sum by monthly installments of Kshs. 25,000/= with effect from the date of this judgment till payment in full
- 3.In the event of default of payment of any monthly installment, execution shall issue
- 4.The Defendant/Applicant shall have the costs of this Application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 21 Rule 12(2), Order 45 Rule 1 and Order 22(1) Civil Procedure Rules 2010 (post-judgment discretionary jurisdiction)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
THAT a stay of execution of Judgment dated 28/11/2024 and decree dated 25/6/2025 be and is hereby issued.
THAT the Defendant/Applicant be and is hereby allowed to settle the decretal sum by monthly installments of Kshs. 25,000/= with effect from the date of this judgment- till payment in full.
THAT in the event of default of payment of any monthly installment, execution shall issue.
it is not lost on this court that a decree holder is entitled to enjoy the fruits of his judgment.
After passing of any such judgment or decree, the court may on the application of the judgment-debtor and with the consent of the decree-holder or without the consent of the decree-holder for sufficient cause shown, order that the payment of the amount decreed be postponed or be made by instalments
Issues in the judgment
#The disposition stays execution of a judgment dated 28/11/2024, but the body of the ruling states judgment was delivered on 25/11/2024.
The application seeks stay pending hearing and determination of the application, but the final order grants stay without any stated time limit alongside the installment order.
One of the annexed decrees is recorded with an uncertain amount (Kshs. 540,000?=).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Robert v Mwikya (Civil Case E039 of 1000) [2026] KEMC 523 (KLR)", Case Analysis (2026). Notice of Motion dated 4th November, 2025 (ruling delivered 12th August, 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/523/eng@2026-08-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.