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8. The foregoing prompted this court to fix this matter for hearing on the disputed sum of Kshs. 20,000/=. EVIDENCE Plaintiff’s Case 9. PW1 Sussy Nanjala testified that the Defendant owed her Kshs. 66,000/= as at the time of her testimony on 04th November 2025. She admitted having been paid Kshs. 14,000/= by the Plaintiff through Chwele Police Station in settlement of the initial loan sum of Kshs. 80,000/=. 10. She again changed tune and testified that the Defendant owed her Kshs. 68,000/=. She also adopted her witness statement on the record as her evidence in chief and produced the undated loan agreement between her and the Defendant as an exhibit. 11. In cross-examination, she denied receiving Kshs. 4,000/= from the Plaintiff through the OCS Chwele. 12. PW2 No. 235870 C.I Everline Simiyu of Sang’alo Police Station testified that sometime in November 2024, while serving as the OCS Chwele, complained to her that IP Kemunto was mishandling the debt case between her and the Defendant. She took over the case from IP Kemunto. 13. She added that on 15th November 2024 she received Kshs. 4,000/= from the Defendant. She also received Kshs. 2,000/= from the Defendant on 15th December 2024. She further stated that she gave the Kshs. 6,000/= in settlement of the debt the Defendant owed the Plaintiff. Defendant’s Case 14. DW1 Linet Muyoka Namasake reiterated that she owed the Defendant Kshs. 60,000/= having already paid the Defendant Kshs. 20,000/= out of the initial debt of Kshs. 80,000/=. ANALYSIS & DETERMINATION 15. This court has given due regard to the pleadings and the evidence on record. It is this court’s considered view that the issues for determination are: a) Whether the Defendant owes the Plaintiff Kshs. 80,000/=

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b) Whether the Defendant should repay the amount due to the Plaintiff through installments c) Whether interest should be levied on the amount due to the Plaintiff d) Who should bear the costs of this suit Whether the Defendant owes the Plaintiff Kshs. 80,000/= 16. An analysis of the Plaintiff’s testimony shows that she admitted receiving Kshs. 14,000/= from the Plaintiff through IP Kemunto despite initially denying receiving any money from IP Kemunto. 17. Further, the Plaintiff’s testimony before this court shows that whereas she initially testified that the Defendant owed her Kshs. 60,000/=, she later changed tune to claim that the Defendant owed her Kshs. 66,000/=. She appeared to dispute receiving Kshs. 6,000/= from CI Simiyu (PW2). PW2 on the other hand reiterated in her testimony that she gave the Plaintiff the Kshs. 6,000/= she received from the Defendant towards settlement of the initial debt of Kshs. 80,000/=. 18. The question that bothers this court at this stage is who, between PW1 and PW2, was stating the truth about the disputed Kshs. 6,000/=. 19. It is evident from the Plaintiff’s testimony that she kept on shifting goal posts on the extent of the Defendant’s indebtedness to her. In M’Ituamka M’Marambei (Suing as the legal representative of the Estate of Peter Miriti v Board of Management - Miathene High School [2020] eKLR, Gikonyo, J stated as follows regarding a witness who kept on changing his testimony: He kept on changing his story: at other times he stated that his bus was not pelted with stones. He also was not clear how and why police took custody of the bus. He simply stated that when the police came to take the body, they asked him to drop the students and return the vehicle to the station. On this see the case of LARKIN VS. NASSAU ELECTRIC R. R. Co. 98 N. E 465 (N. Y., 1912) it was stated that: “Repugnant statements or contraries cannot be true and the fact that the witness has made them tends to show that his is untrustworthy through carelessness, an uncertain memory or dishonesty. Nor need there be a direct and positive contradiction. It is enough that the testimony and the statements are inconsistent and tend to prove differing facts.” 20. This court had the benefit of observing the Plaintiff’s demeanour during her testimony. She could remember the circumstances of this case very well. Therefore, her

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inconsistencies on whether she received money from IP Kemunto and PW2 cannot be attributed to carelessness or an uncertain memory. 21. Guided by the authority above, this court finds and holds that the Plaintiff was simply dishonest about whether or not she received Kshs. 20,000/= from the Defendant through IP Kemunto and PW2 in partial settlement of the initial debt of Kshs. 80,000/=. 22. It is against this backdrop that this court finds and holds that the Defendant owes the Plaintiff Kshs. 60,000/=. Whether the Defendant should repay the amount due to the Plaintiff through installments 23. The Defendant initially proposed to settle the amount due to the Plaintiff through equal monthly installments of Kshs. 1,000/=. She later proposed to settle the amount due to the Defendant through equal monthly installments of Kshs. 500/=. 24. The Plaintiff rejected the repayment proposal by the Defendant for being unreasonable. This court agreed with the Plaintiff that the proposed repayment plan by the Defendant was unreasonable, given that it would take the Defendant at least five (5) years to settle the outstanding debt of Kshs. 60,000/=. 25. Order 21 Rule 12 (2) of the Civil Procedure Rules, 2010 empowers the court to determine whether payment of the amount decreed will be postponed or settled by way of installments, to wit“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 decree holder for sufficient cause shown, order that the payment of the amount decreed be postponed or be made by installments on such terms as to the payment of interest, the attachment of the property of the judgment debtor or the taking of security from him, or otherwise as it thinks fit” 26. The court’s discretion under Order 21 Rule 12 (2) of the Civil Procedure Rules must be exercised judiciously and not arbitrarily or whimsically, but each case is decided on its own merit. 27. In Rajabali Alidina v Remtulla Alidina & Another (1961) EA 565, cited with approval in Awuonda v Kenya Commercial Bank Limited (2023) eKLR, the court set conditions to be considered before a court orders payment of the decretal sum through installments as follows: a) The circumstances under which the debt was contracted; b) The conduct of the debtor;

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c) His financial position; d) His bona fides in offering to pay a fair proportion of the debt at once. 28. The Defendant did not lead any credible evidence on her financial position. This court notes that the Plaintiff used to repay the initial debt of Kshs. 80,000/= through installments at Chwele Police Station. However, she stopped repaying the outstanding loan sum leading to the filing of this suit. The Defendant has also not paid any money to the Plaintiff since the filing of this suit. She has also not offered to pay a fair portion of the outstanding sum of Kshs. 60,000/= in lumpsum. 29. It would appear from the foregoing that the Defendant has not satisfied the conditions for an order for repayment of the decretal sum through installments. 30. Be that as it may, this court takes judicial notice of the harsh economic times in this country. This court has also considered the contents of the undated loan agreement on record between the parties herein. That agreement shows that the Defendant voluntarily committed to settle the debt due to the Plaintiff through equal monthly installments of Kshs. 10,000/=. This is sufficient proof that she can afford to repay the loan herein through equal monthly installments of Kshs. 10,000/=. 31. Given the above, this court orders the Defendant to settle the outstanding loan of Kshs. 60,000/= through equal monthly installments of Kshs. 10,000/=. The first monthly installment will be due on 28th February 2026. The remaining monthly installments will be due on or before the last date of the succeeding months till full payment of the money due to the Defendant. 32. In the event the Defendant defaults in paying any of the monthly installments when due, the Plaintiff will be at liberty to commence execution proceedings against the Defendant for the recovery of the outstanding sum in full. Whether interest should be levied on the amount due to the Plaintiff 33. The Plaintiff prayed for interest on the sum of money due to her. This court has had the benefit of perusing the undated loan agreement on record between the parties herein. 34. The said agreement does not contain any clause on interest to be levied on the money/debt due to the Plaintiff. The general rule is that a court cannot rewrite agreements voluntarily executed by parties (see Morjaria v Patel (Civil Case 153 of 2018) [2025] KEHC 2930 (KLR)). 35. In the circumstances, this court declines to make an order for interest on the money due to the Plaintiff. Who should bear the costs of this suit 36. The Plaintiff filed this suit upon the Defendant failing to honour the terms of the loan agreement herein. Had the Defendant honoured the terms of the said agreement or settled

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this matter out of court, the Plaintiff would not have spent money in filing this suit or attending court. 37. It is only just and fair that the Defendant pays the Plaintiff reasonable costs the Plaintiff incurred in litigating this suit. 38. Taking the totality of the circumstances of this case into consideration, this court awards the Plaintiff costs of Kshs. 10,000/=. DETERMINATION 39. The upshot of the foregoing is that: (a) Judgment is entered against the Defendant for the sum of Kshs. 60,000/= (b) The Defendant is hereby ordered to settle the sum in (a) above through equal monthly installments of Kshs. 10,000/=. The first monthly installment will be due on 28th February 2026. The remaining monthly installments will be due on or before the last date of the succeeding months till full payment of the money due to the Plaintiff (c) In the event the Defendant defaults in paying any of the monthly installments when due, the Plaintiff will be at liberty to commence execution proceedings against the Defendant for the recovery of the outstanding sum in full. (d) The Plaintiff will have the costs of this suit assessed at Kshs. 10,000/=. 40. Judgment accordingly. 41. The Certificate of Costs and Decree to issue upon payment of the requisite court fees. 42. This file is closed. Read, signed, and delivered in open court at Bungoma this 19th day of February 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Plaintiff Defendant C/A: Mr. Rioba

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