Muchiori & another v Katio & another

Applicants had failed to satisfy the decretal sum and that, upon the lapse of 30 days from the date of judgment, the Claimant applied for warrants of attachment and instructed Dancy Auctioneers to execute the decree. Counsel further deposed that the Applicants have not demonstrated compliance with the conditions necessary to warrant the grant of an order of stay of execution. Further, Dancy Auctioneers were entitled to compensation for the work undertaken in execution of the decree pursuant to Rule 55(1) of the Auctioneers Rules as read together with the Fourth Schedule thereto. 4. Additionally, the Applicants have failed to place before this Honourable Court any evidence, including but not limited to an invoice from Dancy Auctioneers, demonstrating that the auctioneer’s charges are exorbitant as alleged. 5. That, without prejudice to the foregoing, should this Honourable Court be inclined to grant the stay of execution sought, the Applicants/Respondents ought to demonstrate their bona fides by paying a reasonable proportion of the decretal sum upfront and settling the balance by instalments as follows: the first instalment of Kshs. 260,310.02 to be paid within 7 days from the date of the ruling of this Honourable Court and the balance of Kshs. 260,310.02 to be paid in two consecutive equal instalments of Kshs. 131,155.01 each, together with any interest accruing thereon, until payment in full. 6. That, if the Applicants/Respondents default in payment of any of the instalments, the Respondents/Claimants be granted liberty by this Honourable Court to proceed with execution of the decree. 7. That this Honourable Court be pleased to order that the movable properties attached and proclaimed by Dancy Auctioneers on 30 th July 2026 be preserved and remain attached as security for the due performance and satisfaction of the decree pending payment in full. 8. Lastly, that if this application is found to be an abuse of the process of this Honourable Court, the same ought to be dismissed with costs to the Respondents/Claimants.

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Issues for determination 9. Having considered the Application, the grounds in support thereof, the Supporting Affidavit, the Replying Affidavit and the annexures thereto, the Court identifies the following issues for determination: i. Whether the Applicant has demonstrated sufficient cause to warrant payment of the decretal sum by instalments; and ii. Whether this Court can compel the Dancy Auctioneers to tax their fees in court. Analysis and determination i. Whether the Applicant has demonstrated sufficient cause to warrant payment of the decretal sum by instalments 10. Section 36 (1) (a) of the Small Claims Act, 2016 provides that the Court may, in relation to any claim within its jurisdiction, order payment of money either in lump sum or by instalments. 11. Rule 27 of the Small Claims Rules provides that: - (1) Where a party in favour of whom a decree has been issued rejects the debtor's proposal to satisfy the decree by instalments, the Court may, on the oral or written application made by the debtor a. Hear the parties' corresponding proposals; and b. on being satisfied on evidence that the debtor is unable to satisfy the decree in lump sum, make an order allowing the debtor to satisfy the decree – i. in accordance with the payment schedule proposed by the debtor; ii. in accordance with the payment schedule proposed by the creditor; or iii. by instalments on such terms as the Court may think just. (2)In determining an application made under this rule, the Court shall consider, among other things a. the debtor's net monthly income;

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b. the aggregate value of the debtor's assets and liabilities; c. the aggregate value of the debtor's assets, if any, disposed of by the debtor immediately before or subsequent to the filing of the claim against the debtor with intent to defeat the creditor. 12. The consideration of an application for payment of the decretal sum by instalments is a matter within the discretion of the Court.The Applicant bears the burden of demonstrating sufficient cause to warrant the indulgence sought. This principle was aptly stated in Winfred Nyawira Maina v Peterson Onyiengo Gichana [2015] KEHC 7150 (KLR), where Gikonyo J cited the case of Jabali Alidina v Lentura Alidina [1961] EA 565 at page 566 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 Applicant to show that he is entitled to indulgence under this rule. It is for the Applicant to show “sufficient reason” for indulgence being shown to him, and this court is immediately faced with difficulty in this respect, as the learned magistrate has not stated what reasons put forward by the Applicant he considered sufficient to justify the exercise of the court’s discretion in the Applicant’s favour.” 13. The Court is also guided by the case of Freight Forwarders Ltd v Elsek & Elsek (K) Ltd [2012] eKLR, Mwongo J narrowed the test for "sufficient cause" into three limbs: (i) that the debtor is unable to pay in a lump sum; (ii) that the debtor can reasonably meet monthly instalments; and (iii) that the application is made in utmost good faith. 14. Applying the above stated provisions and principles to the application before me, Rule 27(2) of the Small Claims Rules requires the Court, in determining such an application, to have regard to the debtor's net monthly income and the aggregate value of the debtor's assets and liabilities. A perusal of the Supporting Affidavit

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neither discloses particulars of the Applicants’ income nor assets or liabilities from which this Court can objectively assess capacity to pay. It is not sufficient for the Applicants to merely assert an inability to settle the decretal amount in a lump sum; the Rules place an evidentiary burden on the Applicants to place such material before the Court. In my view, the Applicants have not discharged this burden. 15. It is also noteworthy that upon delivery of the judgment on 6th May 2026, the Applicants were granted 30 days within which to satisfy the decretal sum. However, the Applicants did not make any payment within that period. Instead, upon the lapse of the 30 days, execution was commenced, prompting the filing of the present application. 16. That notwithstanding, I note that the Respondents have not taken an entirely inflexible position. Without prejudice to their opposition, the Respondents have proposed the following terms; an initial instalment of Kshs. 260,310.02 within 7 days from the date of this ruling, followed by two equal instalments of Kshs. 130,155.01 each, together with accruing interest, liberty to execute upon default and the attached movable properties preserved as security pending satisfaction of the decree. 17. I am persuaded that this proposal represents a just and proportionate middle course. It allows the Applicants to settle the decree in instalments while safeguarding the Respondents’ entitlement to enjoy the fruits of the judgment. The proposal is also consistent with Rule 27(1)(b)(ii), which permits the Court to allow satisfaction of the decree in accordance with the payment schedule proposed by the creditor where the debtor's proposal is not justified. 18. Accordingly, I decline to grant the Applicants' proposal of three equal monthly instalments commencing 30 days from this ruling, as it is unsupported by evidence. I am satisfied that it is just to adopt the Respondent's proposed schedule as set out in paragraph 16 above.

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ii. Whether this Court can compel Dancy Auctioneers to tax their fees in court 19. Turning to the second issue, Dancy Auctioneers are not parties to this suit; no order compelling a non-party to submit to taxation can properly issue in an application between the Claimants and the Respondents without the auctioneers being joined and heard. 20. Further, Rule 55(1) of the Auctioneers Rules provides that where a dispute arises as to the amount of fees payable to an auctioneer, a magistrate or the Auctioneers Board may, on the application of any party to the dispute, assess the fees payable. The provision therefore contemplates an existing dispute as to the amount of fees payable and an application by a party to that dispute, upon which the Court may proceed to assess the fees. 21. In the present case, the Applicants have not placed before the Court any application or any invoice to invoke that jurisdiction. The prayer seeking to compel taxation is therefore premature, unsupported by evidence and unsubstantiated and is accordingly declined. Disposition 22. i. In light of the foregoing, I make the following orders: The Applicants shall pay to the Respondents/Claimants a sum of Kshs. 260,310.02 within 7 days from the date hereof; ii. The balance of the decretal sum, being Kshs. 260,310.02, together with interest accruing thereon, shall be paid in 2 equal monthly instalments of Kshs. 130,155.01 each, the first falling due 30 days after the payment in (i) above, and the second 30 days thereafter; iii. In default of payment of any instalment on its due date, the Respondents/Claimants will be at liberty to proceed with execution;

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iv. The movable properties already attached and proclaimed by Dancy Auctioneers on 30th July 2026 shall remain attached as security for due performance; v. The prayer to compel Dancy Auctioneers to tax their fees in court is declined; and vi. Each party shall bear their own costs of this Application. DATED, SIGNED AND DELIVERED VIRTUALLY AT MILIMANI SMALL CLAIMS COURT THIS 25th DAY OF AUGUST 2026. CHEROTICH MARYLEEN ADJUDICATOR/ RESIDENT MAGISTRATE In the presence of: Ms. Korir for the Claimants/Respondents.

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