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Small ClaimsPartially AllowedKitale SCC Claim. No. E053 of 2024

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

Small Claims Court
8 July 2024
1,247 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Small Claims Court at Kitale on an application dated 6th June 2024 by the judgment debtor (Respondent/Applicant) seeking leave to liquidate a decretal sum by monthly instalments of Kshs. 30,000/= with effect from August 2024, or alternatively to deposit a document of title as security. The application was anchored on sections 1, 1A, 1B and 3A of the Civil Procedure Act and Order 21 rule 12(1) of the Civil Procedure Rules, and was canvassed orally. The Claimant/Respondent opposed, offering instead to accept instalments of Kshs. 100,000/= per month. The court identified a single issue - whether the application was merited - and applied section 36(1)(a) of the Small Claims Court Act together with Order 21 rule 12(2) of the Civil Procedure Rules, 2010, holding that its discretion to allow instalments must be exercised judicially. Relying on A. Rajabali Alidina v Remtulla Alidina, Hildegard Ndalut v Lelkina Dairies Ltd and Freight Forwarders Ltd v Elsek & Elsek (K) Ltd, the court held that the Applicant had to show sufficient cause, bona fides and a fair payment proposal. The proposed Kshs. 30,000/= instalments would take fifteen months, unreasonably delaying the decree holder, and the Applicant filed no evidence of his financial position. However, his admission of the claim and pursuit of settlement evidenced good faith. The application partially succeeded: the decretal sum of Kshs. 510,000/= plus costs and interest is payable in six equal monthly instalments within six months, with the first due on or before 8th August 2024, default triggering a fresh decree and execution. Each party was ordered to bear their own costs.

Questions the Court framed

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

  1. 1.Whether the instant Application for payment of the decretal sum by monthly instalments of Kshs. 30,000/= is merited

Key legal issues

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01

Whether the application for payment of the decretal sum by instalments was merited

Holding

Partially merited: the Applicant failed to justify the proposed Kshs. 30,000/= monthly instalments but showed good faith, so the court crafted a six-month, six-instalment schedule

Reasoning

The court found jurisdiction under section 36(1)(a) of the Small Claims Court Act and Order 21 rule 12(2) of the Civil Procedure Rules, giving it discretion to order instalments, exercised judicially. The Applicant's proposal of Kshs. 30,000/= monthly would take fifteen months, unreasonably delaying the decree holder from enjoying the fruits of judgment. The Applicant also filed no evidence of his financial position to prove hardship. However, his conduct - admitting the claim and seeking to settle - demonstrated good faith, justifying partial indulgence on the court's own terms.

p. 4
02

Whether the Respondent/Applicant proved inability to pay the decretal sum at once

Holding

Not proved; mere assertion of financial constraints without documentary evidence was insufficient on a balance of probabilities

Reasoning

The Applicant only stated that his maize hawking business faced low demand, without filing evidence of his financial position. The court therefore could not determine whether full payment would cause him hardship, and found he had not discharged the burden of proving he could not pay the decretal sum in a lump sum.

p. 4

Legal principles established

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  • The discretion to order payment of a decretal sum by instalments must be exercised judicially and not arbitrarily, and the onus is on the judgment debtor to show entitlement to indulgence
  • An applicant for instalment orders must demonstrate sufficient cause and show bona fides by making a fair payment proposal, without unduly delaying the judgment creditor from reaping the fruits of judgment
  • Sufficient cause for instalment orders comprises: inability to pay in lump sum, ability to pay by reasonable monthly instalments, and an application made in utmost good faith

Court orders

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  1. 1.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
  2. 2.The first monthly instalment will be due on or before 08th August 2024
  3. 3.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
  4. 4.Each party to bear their costs
Jurisdiction invoked
Section 36(1)(a) of the Small Claims Court Act and section 3A of the Civil Procedure Act; Order 21 rule 12 of the Civil Procedure Rules

Relief refused

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Payment of the decretal sum by monthly instalments of Kshs. 30,000/= effective August 2024 until full settlement

The proposal was too low, would take fifteen months, and the Applicant filed no evidence of his financial position; the decree holder should not be delayed from enjoying the fruits of judgment

p. 4

Alternative prayer that the Applicant be allowed to deposit a document of title as security for payment of the sums due and owing

Not granted; the court instead framed its own instalment schedule

Costs

Each party to bear their own costs

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 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 instalments.
p. 2Jurisdiction and discretion to order instalments
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.
p. 4Fruits of judgment and finality of litigation
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;
p. 5Final orders - disposition
The Respondent/Applicant having partially succeeded in his application, each party to bear their costs.
p. 5Costs order

Issues in the judgment

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material

The coram does not name the presiding adjudicator/judicial officer; no name appears anywhere in the ruling

minor

The parties are not named anywhere in the ruling; they are referred to only by role designations

minor

The application is stated to be brought under Order 21 rule 12(1) of the Civil Procedure Rules, 2020, but the court quotes and applies Order 21 Rule 12(2) of the Civil Procedure Rules, 2010 - an internal inconsistency in the rules version and sub-rule cited

minor

The role designations are used inconsistently - the judgment-debtor is called 'Respondent/Applicant' while the decree holder is called 'Claimant/Respondent', and at one point the court addresses 'the Claimant/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, "Wepukhulu v Tuwei (Claim E053 of 2024) [2024] SCC 23 (KLR)", Case Analysis (2024). Kitale SCC Claim. No. E053 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2024/23/eng@2024-07-08

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