Wepukhulu v Tuwei (Claim E053 of 2024) [2024] SCC 23 (KLR)

The Claimant/Respondent opposed the instant Application by submitting that the Kshs. 30,000/= monthly instalment proposed by the Respondent/Applicant was way too low since it would take too long to settle the decretal sum. He submitted that he was ready to consider payment of the decretal sum by monthly instalments of Kshs. 100,000/= each. conceded to a monthly instalment of Kshs. 100,000/=. ANALYSIS AND DETERMINATION This court has carefully read and considered the pleadings filed herein and the oral submissions by the parties herein. and written submissions filed by the parties herein. The only issue for determination is whether the instant Application is merited. Whether the instant Application is merited Section 36 (1) (a) of the Small Claims Court Act permits this court to make orders for payment of a claim either by lumpsum or through instalments. Order 21 Rule 12 (2) of the Civil Procedure Rules, 2010 provides as follows:“After passing of any such 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 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”. The provisions of Section 36 (1) (a) of the Small Claims Court Act and Order 21 Rule 12 (2) of the Civil Procedure Rules, 2010 give this court unlimited discretion to order for settlement of the decretal sum by way of Kitale SCC Claim. No. E053 of 2024 Page 2 of 5 Ruling

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instalments. However, such discretion, like any other judicial discretion, must be exercised in a judicial and not an arbitrary manner. In A. Rajabali Alidina v Remtulla Alidina & Anor. (1961) EA 565, Law JA stated that:“All commentators on the Civil Procedure Code agree that the court’s discretion to order payment of the decretal amount in instalments is one which must be exercised in a judicial and not an arbitrary manner. The onus is on the defendant to show that he is entitled to indulgence under this rule.” In Hildegard Ndalut v Lelkina Dairies Ltd & Anor. (2005) eKLR, Dulu Ag. J as he was then stated in this regard as follows:“Both parties have referred to the case of Keshavji Jethabhai & Bothers Limited –vs- Saleh Abdulla [1959] EA 260, which is a case from a High Court of Tanganyika. That case followed the principles laid down in the Indian case of Sawatram Ramprasad –vs- Imperial Bank of India (1933) AIR Nag. 33 – that a defendant should be required to show his bona fides by arranging fair payment of the proportion of the debt – in persuading the court to allow payment by way of installments. 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 creditor might genuinely be in a difficult 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”.(emphasis mine) Guided by the authorities cited above, it follows that an Applicant approaching the court for orders like the ones sought herein by the Respondent/Applicant, an Applicant should demonstrate to the court Kitale SCC Claim. No. E053 of 2024 Page 3 of 5 Ruling

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‘sufficient cause’ why such orders should be granted and that the Applicant should make a fair payment proposal. In Freight Forwarders Ltd v Elsek & Elsek (K) Ltd (2012) eKLR, Mwongo J narrowed the principles as regards to what amounts to ‘sufficient cause’ to include the following; (a) The debtor is unable to pay in lump sum. (b) The debtor can pay by reasonable monthly instalments. (c) The application is made in utmost good faith. The Respondent has simply stated that he is experiencing financial constraints due to low demand affecting his maize hawking business. He prays to defray the decretal sum of Kshs. 510,000/= through monthly instalments of Kshs. 30,000/= each. This court agrees with the Claimant/Applicant that the proposal by the Respondent/Applicant is way too low since it will take fifteen (15) months. Justice requires that the decree holders are not delayed from enjoying the fruits of their judgment. Allowing the Respondent/Applicant to settle the decretal sum in the manner and the duration proposed by him will be unreasonable. Litigation must come to an end. It should also be noted that other than simply stating that he has financial constraints, the Respondent/Applicant has not filed evidence to show his financial position for this court to determine if he will suffer any hardship if he is called upon to settle the decretal sum in full. That being the case, it follows that the Respondent/Applicant has not proved on a balance of probabilities that he cannot settle the decretal sum at once. On whether the instant Application has been made in good faith, the court notes that when this claim was filed, the Respondent/Applicant admitted the claim hence judgment on admission was entered against him. The Respondent/Applicant, thereafter, sought to settle the decretal sum by way Kitale SCC Claim. No. E053 of 2024 Page 4 of 5 Ruling

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of instalments. It is this court’s considered view that such steps are a sign of good faith on the part of the Respondent/Applicant. For the reasons above, the instant Application partially succeeds in the following terms:a) 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; b) The first monthly instalment will be due on or before 08 th August 2024; and c) 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. The Respondent/Applicant having partially succeeded in his application, each party to bear their costs. It is so ordered. Read, signed and Delivered in open court at Kitale this 08th day of July 2024 Kitale SCC Claim. No. E053 of 2024 Page 5 of 5 Ruling

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