Kemboy Law Advocates v Njonjo & 3 others (Miscellaneous Application E041 of 2024) [2025] KEELRC 2194 (KLR)

monthly instalments beginning 30th April 2025, whereby the first seven instalments would be Kshs. 500,000 with the eighth and final instalment being Kshs. 999,779; c. The 4th Applicant is genuinely in a dificult position in paying the decretal amount at once; d. The application has been filed expeditiously and the first instalment is proposed to be paid on or before 30th April 2025; e. The 4th Applicant is at serious risk of being crippled financially and is apprehensive that should its cash fiow not be managed, its entire operation and employee jobs would be put to the guillotine. 4. In her afidavit in support of the application, Beatrice Maiyo depones that Dancy Auctioneers, acting on instructions from the Advocate, have proclaimed the 4th Respondent’s tools of trade being; motor vehicles, ofice furniture and work machines, in execution of the decree emanating from the Certificate of Taxation adopted as a judgment of the Court on 2nd April 2025. 5. Maiyo further depones that prior to adoption of the Certificate of Taxation, the 4th Respondent had, vide an email dated 20th February 2025, ofiered to settle the decretal sum in eight instalments beginning 30th April 2025, with seven instalments of Kshs. 500,000 and a final one of Kshs. 999,779. 6. The Advocate opposes the application by a replying afidavit sworn by Ruth Wainaina-Kemboy, Advocate on 23rd April 2025. Counsel terms the application as no more than a frivolous and vexatious attempt to undermine the judgment and decree in favour of the Advocate. 7. Counsel takes the view that the application does not meet the threshold for grant of stay of execution under Order 42 Rule 6 of the Civil Procedure Rules, as the decretal sum is not contested and there is no declared intention to appeal against the enforcement of the Certificate of Taxation. 8. Counsel depones that the 4th Applicant has not demonstrated the specific loss it will sufier if the order of stay is not granted. She adds that the averment that the 4th Applicant is unable to settle the decretal sum at once is not supported by any evidence. 9. Counsel further alludes to an impending restructuring of the 4th Applicant’s business, involving transfer of assets, contracts and a small number of stafi to a new company. She claims that the restructuring is aimed at avoiding significant obligations, while continuing operations under a new corporate entity. 10. Although the parties devoted a significant part of their submissions on the provisions of Order 42 Rule 6 of the Civil Procedure Rules, the substratum of the application is premised on Order 21 Rule 12 which provides as follows: 12. (1) Where and in so far as a decree is for the payment of money, the court may for any suficient reason at the time of passing the decree order that payment of the amount decreed shall be postponed or shall be made by instalments, with or without interest, notwithstanding anything contained in the contract under which the money is payable. (2) After passing of any such decree, the court may on the application of the judgmentdebtor and with the consent of the decree-holder or without the consent of the decreeholder for suficient cause shown, order that the payment of the amount decreed be postponed or be made in instalments on such terms as to the payment of interest, the https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2194/eng@2025-07-24 2

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attachment of property of the judgment- debtor or the taking of security from him, or otherwise, as it thinks fit. 11. In the Advocate’s submissions dated 12th May 2025, reference was made to the decisions in Botanics Kenya Ltd v Ensign Food (K) Ltd [2016] KEHC 5870 (KLR) and Rajabali Alidina v Remtulla Alidina & another [1961] EA 565 where the applicable principles in adjudicating an application under Order 21 Rule 12 of the Civil Procedure Rules were established as follows: a. The circumstances under which the debt was contracted; b. The conduct of the debtor; c. The financial position of the debtor and; d. The debtor’s bona fides in ofiering to pay a fair proportion of the debt at once. 12. Reference was also made to the decision in Freight Forwarders Ltd v Elsek & Elsek (K) Ltd [2012] eKLR where Mwongo J held that a debtor seeking to be allowed to settle a debt in instalments must demonstrate inability to pay in lump sum and ofier reasonable monthly instalments. The learned Judge added that the application must be made in utmost good faith. 13. The Advocate further relied on Hildegard Ndalut v Lelkina Diaries Ltd & another [2005] eKLR where Dulu J stated as follows: “ …a defendant should be required to show his bona fides by arranging a fair payment of the proportion of the debt-in persuading the court to allow payment by way of instalments. This, in my view, is the proper test to apply in granting orders for payment of a decretal amount by way of instalments. A judgment creditor is entitled to payment of the decretal amount, which he should receive promptly to reap the fruits of the judgment. The judgment debtor might genuinely be in a dificult position in paying the decretal amount at once. However, he has to show seriousness in paying the amount. In that event, he should show his bona fides by arranging fair payment proposals to liquidate the amount. “ 14. In Keshanji Jethabhai & Brothers Limited v Saleh Abdullah [1959] EA 260 it was held that the mere fact that a judgment debtor has cash fiow challenges is not a suficient reason to allow liquidation of a debt in instalments. 15. In the instant case, the 4th Applicant alludes to financial challenges, without details and without supporting evidence. Moreover, it is on record that the 4th Applicant resisted payment of the debt up until the time this Court overruled its objection to the taxation by the Taxing Master. 16. Further, even after obtaining interim relief from my brother, Manani J on 16th April 2025, the 4th Applicant has not made any payment towards liquidation of the debt. This cannot be a sign of good faith as required of a party seeking the exercise of discretion under Order 21 Rule 12 of the Civil Procedure Rules. 17. Overall, I am not persuaded that the Applicants have made out a case to be allowed to settle the debt in instalments. The application dated 14th April 2025 is therefore dismissed with costs to the Advocate. The interim orders granted on 16th April 2025 are vacated. 18. Orders accordingly. DELIVERED VIRTUALLY AT NAIROBI THIS 24TH DAY OF JULY 2025 LINNET NDOLO https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2194/eng@2025-07-24 3

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JUDGE Appearance: Mr. Kere for the Advocate Mr. Otieno for the Applicants https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2194/eng@2025-07-24 4

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