1. On 30th September 2022 the court dismissed the Applicant’s applications seeking to file a reference out of time and review the court’s earlier order of 16th May 2022. As a consequence, the ruling of the Deputy Registrar dated 12th November 2021 and the judgment and decree of the court dated 16th May 2022 requiring the Applicant to pay the Respondent Kshs. 5,756,023.04 as certified and taxed costs were upheld. The Respondent has since evinced his intention to execute the said decree and has instructed auctioneers to proceed and attach the Applicant’s property and realize the sum of Kshs. 6,253,697.83.
2. The Applicant has now approached the court through the Notice of Motion dated 26th October 2022 seeking leave to liquidate the decretal sum in 30 equal monthly instalments to be paid on the 30th day of each consecutive month until full and final settlement presumably under Order 22 rule 12 of the Civil Procedure Rules. The application is supported by the affidavit of the Applicant’s director Premji Vekari sworn on 26th October 2022. It is opposed by the Respondent through the Replying Affidavit of its Managing Partner, Anthony Milimu Lubulellah sworn on 1st November 2022. The Respondent has also filed written submissions to supplement its arguments.
3. I have considered the parties’ depositions and submissions. The court jurisdiction to order payment of the decretal sum by way in installments on such terms as it thinks fit. However, it is upon an applicant to show sufficient cause why it should be allowed to pay the decretal sum in instalments by placing before sufficient material. In other words, an applicant must be candid and make full disclosure of its financial position.
4. Having considered the Applicant’s deposition, I am unable to find sufficient reasons for the court to exercise discretion in its favour. I agree with the Respondent that no evidence has been adduced by the Applicant to demonstrate that it is entitled to relief. If anything, the Respondent has been able to demonstrate that the Applicant is more than capable of paying the decretal sum, having already received Kshs. 54,000,000.00 in May 2021 as part payment of the arbitral award that the parties herein were a part of. This is not demonstrative of good faith on the part of the Applicant as it could have offered to make payment the moment it received this part payment. There is also no proof that the Applicant is in dire financial straits so as not to satisfy the decree in a lump sum.
5. The Respondent is entitled to the fruits of its judgment and since the Applicant has not shown proper and sufficient cause as to why it cannot pay the decretal sum in full, I do not see why this court should indulge it.
6. The Applicant’s applications 26th October 2022 lacks merit. It is dismissed with costs of Kshs. 20,000.00.
DATED and DELIVERED at NAIROBI this 9th day of DECEMBER 2022
D. S. MAJANJA
JUDGE