Wepukhulu v Tuwei (Claim E053 of 2024) [2024] SCC 23 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the application for payment of the decretal sum by instalments was merited
Partially merited: the Applicant failed to justify the proposed Kshs. 30,000/= monthly instalments but showed good faith, so the court crafted a six-month, six-instalment schedule
The court found jurisdiction under section 36(1)(a) of the Small Claims Court Act and Order 21 rule 12(2) of the Civil Procedure Rules, giving it discretion to order instalments, exercised judicially. The Applicant's proposal of Kshs. 30,000/= monthly would take fifteen months, unreasonably delaying the decree holder from enjoying the fruits of judgment. The Applicant also filed no evidence of his financial position to prove hardship. However, his conduct - admitting the claim and seeking to settle - demonstrated good faith, justifying partial indulgence on the court's own terms.
Whether the Respondent/Applicant proved inability to pay the decretal sum at once
Not proved; mere assertion of financial constraints without documentary evidence was insufficient on a balance of probabilities
The Applicant only stated that his maize hawking business faced low demand, without filing evidence of his financial position. The court therefore could not determine whether full payment would cause him hardship, and found he had not discharged the burden of proving he could not pay the decretal sum in a lump sum.
Legal principles established
#- The discretion to order payment of a decretal sum by instalments must be exercised judicially and not arbitrarily, and the onus is on the judgment debtor to show entitlement to indulgence
- An applicant for instalment orders must demonstrate sufficient cause and show bona fides by making a fair payment proposal, without unduly delaying the judgment creditor from reaping the fruits of judgment
- Sufficient cause for instalment orders comprises: inability to pay in lump sum, ability to pay by reasonable monthly instalments, and an application made in utmost good faith
Court orders
#- 1.The Respondent/Applicant to settle the whole decretal sum of Kshs. 510,000/= plus the costs and accrued interest within six (6) months from today through six (6) equal monthly instalments
- 2.The first monthly instalment will be due on or before 08th August 2024
- 3.In the event that the Respondent/Applicant defaults in making any monthly instalment when the same falls due, a fresh decree shall issue and execution to proceed for the outstanding balance together with accrued interest
- 4.Each party to bear their costs
- Jurisdiction invoked
- Section 36(1)(a) of the Small Claims Court Act and section 3A of the Civil Procedure Act; Order 21 rule 12 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wepukhulu v Tuwei (Claim E053 of 2024) [2024] SCC 23 (KLR)", Case Analysis (2024). Kitale SCC Claim. No. E053 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2024/23/eng@2024-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.