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Small ClaimsPartially AllowedNot stated in the judgment· [2026] SCC 81 (KLR)

Komu v Directline Assurance Company Ltd (Commercial Case E474 of 2025) [2026] SCC 81 (KLR)

Small Claims Court
8 May 2026
TMTheresa N. Mwangeka
656 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicant filed a Notice of Motion dated 15th April 2026 before the Mombasa Small Claims Court seeking leave to liquidate a decretal sum of Kshs. 1,008,041.49/- by instalments of Kshs. 100,000/- per month. The Respondent/Claimant opposed, submitting that the Applicant had adduced no credible evidence of financial incapacity such as audited accounts, bank statements, pay slips or asset disclosures, that a mere assertion of hardship is insufficient, and that the timing of the application suggested an intention to delay or frustrate execution, the decree having remained unpaid nine months after judgment despite demand. The court, per Hon. Theresa N. Mwangeka, Resident Magistrate/Adjudicator, grounded its jurisdiction in Section 36(1)(a) of the Small Claims Court Act, which permits the court to order payment of a judgment debt in a lump sum or in instalments without the parties' consent. Relying on Wamedi v Mwalughongo, Diamond Star General Forwarding Ltd v Ambrose D O Rachier and Keshvaji Jethabhai & Bros Limited v Saleh Abdulla, the court held that instalment orders are discretionary, that the burden lies on the applicant to candidly disclose all means and prove financial hardship, and that the debtor's bona fides should be shown by offering a fair proportion of the debt. Finding that no financial hardship had been proved and that the proposed instalments of Kshs. 100,000/- were too low, the court nonetheless allowed the application in the interests of justice, ordering payment of the decretal sum with interest and costs in three equal monthly instalments of Kshs. 336,013.83/- commencing 5th June 2026, with interest continuing to accrue and execution to issue upon default of any instalment. The application was thus allowed but on terms materially different from those sought.

Key legal issues

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01

Whether instalment payment of a decree should be granted

Holding

The application was allowed in the interests of justice, but on terms adjusted upward from those sought, with interest continuing to accrue and execution to issue on default

Reasoning

The court reaffirmed that its power under Section 36(1)(a) of the Small Claims Court Act to order payment in instalments is discretionary and must be exercised based on reason. Relying on Keshvaji Jethabhai, the relevant considerations are the circumstances in which the debt was contracted, the conduct of the debtor and his financial position. The Applicant proved no financial hardship and its proposed instalments were too low, but the court nonetheless allowed instalments in the interests of justice on stricter terms.

p. 2
02

Whether the Applicant demonstrated financial incapacity

Holding

No evidence of financial hardship was shown; the Respondent's assertion that the application aimed to delay execution was noted, with the decree unpaid nine months after judgment

Reasoning

The Respondent opposed the application on the ground that no credible evidence of financial incapacity such as audited accounts, bank statements, pay slips or asset disclosures was presented, and that mere assertion of hardship is insufficient. Applying Diamond Star General Forwarding Ltd v Ambrose D O Rachier, the applicant must disclose all means and prove entitlement to instalment orders. The court found nothing on record to prove the claimed financial hardship.

p. 2

Legal principles established

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  • Section 36(1)(a) of the Small Claims Court Act confers discretion on the court to order payment of a judgment debt in a lump sum or instalments without requiring the parties' consent
  • An applicant seeking instalment payment of a decretal sum must candidly disclose all means and prove financial incapacity; the burden lies on the applicant

Court orders

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  1. 1.The appellant will pay the decretal sum together with interest and costs in 3 equal monthly instalments of Kshs. 336,013.83/- until payment in full with effect from 5th of June 2026
  2. 2.Interest will continue to accrue on any unpaid sum until payment is made in full
  3. 3.In default of payment of any instalment, execution to issue

Authorities

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Legislation

  • Small Claims Court ActSection 36(1)(a)

Cases cited (3)

  • Wamedi v Mwalughongo
    Civil Appeal E069 of 2024 [2025] KEHC 7101 (KLR) (30 May 2025)
  • Diamond Star General Forwarding Ltd v Ambrose D O Rachier
    (2018) eKLR
  • Keshvaji Jethabhai & Bros Limited v Saleh Abdulla
    [1959] EA 260
Jurisdiction invoked
Section 36(1)(a) of the Small Claims Court Act

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, "Komu v Directline Assurance Company Ltd (Commercial Case E474 of 2025) [2026] SCC 81 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2026/81/eng@2026-05-08

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