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ELCDismissedApplication dated 9th November 2023 (in the adverse possession suit, Originating Summons dated 28th May 2004)

Omeno v Andajo & another (Environment & Land Case 3 of 2022) [2025] KEELC 4348 (KLR)

High Court of Kenya
5 June 2025
ADA.E. Dena
2,438 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused instalment payments because the debtor offered no sworn proof of finances, giving debtors 45 days to pay.

What this practically means

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Executive summary

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This ruling by the High Court at Siaya (A.E. Dena J) determines a judgment debtor's application dated 9th November 2023 seeking to set aside a warrant of attachment of movable property and to be allowed to satisfy a decree of Kshs. 245,541.50 by instalments. The underlying suit was resolved by an Originating Summons judgment of 13th May 2021 (M.A. Odeny J) recognising the plaintiff's adverse possession claim; an appeal and stay application are pending before the Court of Appeal, which stayed only certain orders of the judgment. The application was brought under Order 21 Rule 12(2) of the Civil Procedure Rules, which permits the court, for sufficient cause shown, to order postponed or instalment payment of a decreed amount. The plaintiff opposed, citing laches, inordinate delay, bad faith and the Court of Appeal's refusal to stay execution of the certificate of costs. Applying Jabali Alidina v Lentura Alidina, Singh Gitau Advocates v City Finance Bank and African Banking Corporation v Florence Wangari Wangai, the court held that the applicant had to disclose his means, financial commitments and bona fides, and that mere inability to pay in a lump sum, generalised complaints of inflation, and an instalment offer made only in submissions (which are not evidence) fell short of sufficient cause. No payments had been made beyond the court-ordered Kshs. 30,000/-. The application was dismissed: the defendant was ordered to pay the balance of the decretal sum within 45 days, failing which the decree holder may execute.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether sufficient reasons have been demonstrated to compel the exercise of the court's discretion in favour of the applicant for payment of the decretal sum by instalments and setting aside the warrant of attachment

Key legal issues

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01

Sufficient cause for payment of decree by instalments under Order 21 Rule 12(2)

Holding

The applicant failed to demonstrate sufficient cause; the discretion was not exercised in his favour

Reasoning

The court applied the criteria in Jabali Alidina, Singh Gitau Advocates and African Banking Corporation: the debtor must be candid, disclose income and financial commitments, show bona fides and act without delay. The applicant gave only general reasons of inflation and cost of living, provided no evidence of means, made the instalment offer only in submissions, and paid nothing beyond a court-ordered Kshs. 30,000/-, showing no goodwill toward reducing the decretal sum.

p. 5

Legal principles established

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  • An applicant under Order 21 Rule 12(2) must show sufficient cause, disclosing means, financial commitments and bona fides; mere inability to pay in a lump sum is not sufficient reason
  • Submissions are not evidence and cannot substitute for sworn material supporting an instalment proposal

Court orders

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  1. 1.The defendants shall pay the balance of the decretal sum as stated in the certificate of costs within 45 days of this ruling
  2. 2.In default, the Claimants/Decree Holders shall be at liberty to execute the decree

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AD
majority

Wrote the judgment

Jurisdiction invoked
Order 21 Rule 12(2) of the Civil Procedure Rules

Relief refused

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Setting aside the warrant of attachment of moveable property

No sufficient cause was shown; the applicant failed to demonstrate economic hardship or bona fides

p. 5

Payment of the decretal sum by instalments of Kshs. 5,000/-

The instalment proposal was not on oath, submissions are not evidence, and no efforts were made to pay beyond the court-ordered Kshs. 30,000/-

p. 5

Costs

No express costs order made; the application was dismissed and the applicant directed to pay the decretal sum within 45 days

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot of the foregoing is that I have not seen any suficient cause to exercise my discretion in favor of the defendants. The application is disposed of in the following terms.
p. 5disposition - dismissal of instalment application
The defendants shall pay the balance of the decretal sum as stated in the certificate of costs within 45 days of this ruling.
p. 5final orders - payment within 45 days
In default of (1) the Claimants/Decree Holders herein shall be at liberty to execute the decree and or apply .
p. 5final orders - liberty to execute in default
Mere inability to pay in lumpsum is not suficient reason.
p. 5standard for sufficient cause
An applicant must furnish suficient reasons for why they should be indulged by the court to liquidate the decretal sum in instalments.
p. 4burden on judgment debtor under Order 21 Rule 12(2)

Issues in the judgment

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minor

Order 4 of the final orders appears incomplete in the judgment text

minor

The judgment inconsistently refers to the decree holder as both 'Plaintiff' and 'Claimants/Decree Holders' in the orders

minor

Paragraph 1 records a 2021 judgment in favour of 'the plaintifi' declaring the applicant proved adverse possession, which is internally inconsistent with the parties' designations (the defendant is the judgment debtor/applicant)

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, "Omeno v Andajo & another (Environment & Land Case 3 of 2022) [2025] KEELC 4348 (KLR)", Case Analysis (2025). Application dated 9th November 2023 (in the adverse possession suit, Originating Summons dated 28th May 2004). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4348/eng@2025-06-05

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