' Introduction
1. The Respondent herein, Invesco Assurance Company Limited, filed a Notice of Motion dated 2nd July 2024 seeking the following substantive orders: -
i. That this Honourable Court be pleased to consolidate the instant matter with the following matters: E893 of 2021, E894 of 2021, E897 of 2021, E899 of 2021, E902 of 2021 and E903 of 2021.
ii. That upon consolidation, the Honourable Court be pleased to allow the Respondent/Applicant to liquidate the consolidated claim of Kshs. 1,529,306/= in installments of Kshs. 100,000/= every 30th day of each month.
iii. That Costs of this Application be in the cause”
2. The Respondent stated that it had demonstrated good faith by paying Kshs. 275,000 towards settlement and by proposing a structured payment plan. It contended that the Applicant nevertheless proceeded to obtain and execute warrants of attachment and sale through Virmir and Beafact Auctioneers, and that the execution was in bad faith as it risked crippling its operations given that essential business assets had been proclaimed.
3. The Respondent further averred that its insurance business had twice been closed by regulators in 2023, causing severe financial distress. It therefore urged the Court to exercise its discretion to permit payment by installments to avoid the collapse of the company. It was contended that the application was made promptly and in good faith, and that no prejudice would be suffered by the decree-holder if stay of execution and consolidation were granted.
4. The application was opposed through a replying affidavit sworn by Julius Opini, an Advocate and partner at the firm of Onyoni Opini & Gachuba Advocates, who deposed that the application was defective and an abuse of the court process for failure to cite the relevant legal provisions.
5. Counsel argued that the Applicant had not properly invoked Order 11 Rule 3(1)(h) of the Civil Procedure Rules, 2010 on consolidation, and that consolidation could not arise because the referenced matters had already been determined and finalized.
6. He stated that the firm had represented the Applicant since 2005 in numerous matters and was owed fees exceeding Kshs. 15 million. Despite repeated demands, the Applicant failed to settle the firm’s fees, prompting taxation of bills of costs and issuance of certificates of taxation. The firm thereafter obtained judgments and commenced execution proceedings through warrants of attachment.
7. It was deposed that following proclamation, the Applicant verbally proposed to pay Kshs. 200,000 in two monthly installments of Kshs. 100,000, a proposal which the firm accepted, though the Applicant defaulted after paying only Kshs. 275,000. Later, through its legal officer, the Applicant proposed to pay Kshs. 100,000 monthly starting 15th June 2024, but the firm insisted on the earlier agreement of Kshs. 200,000 per month.
8. Mr. Opini further argued that the present motion was improperly before Court for failure to cite Order 21 Rule 12(2) of the Civil Procedure Rules, and did not meet the criteria established in Rajabali Alidina v Remtulla Alidina & Another [1961] EA 565. He contended that the proposed Kshs. 100,000 monthly installments were unreasonable given the magnitude of the debt and prayed that the application be dismissed with costs, though the firm was amenable to settlement by monthly payments of Kshs. 200,000.
Analysis and Determination
9. I have considered the pleadings, affidavits, and written submissions filed by both parties. Two issues arise for determination:
a) Whether this Court should order consolidation of the instant matter with the other suits listed; and
b) Whether the Applicant merits an order to liquidate the decretal sum by installments.
Whether the suits may be consolidated
10. On consolidation of suits, the jurisdiction to consolidate suits is donated by Order 11 Rule 3 of the Civil Procedure Rules. It is settled that the purpose of consolidation of suits is to promote efficient and expeditious resolution of related disputes. The Supreme Court in Law Society of Kenya v Centre for Human Rights & Democracy & 12 Others [2014] eKLR stated as follows on the issue:
“The essence of consolidation is to facilitate the efficient and expeditious disposal of disputes and to provide a framework for a fair and impartial dispensation of justice to the parties. Consolidation was never intended to confer any undue advantage upon the party that seeks it, nor to occasion any disadvantage upon the party who opposes it.”
11. From the record, it is evident that the matters which the Applicant seeks to consolidate with this one—namely E893, E894, E897, E899, E902 and E903 of 2021—have already been separately heard and finalized. Consolidation can only apply to pending or ongoing matters. It follows therefore that the court cannot consolidate the matters to the present suit as the matters have already been separately resolved before other courts.
12. Consequently, the prayer for consolidation is misconceived and is hereby dismissed
Whether the prayer for Payment by Installments is merited
13. The second prayer seeks leave to liquidate the decretal amount by installments of Kshs. 100,000 per month.
14. The applicable law is Order 21 Rule 12(2) of the Civil Procedure Rules which provides that:
“After passing of any such judgment or 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 instalments on such terms as it thinks fit.”
15. The guiding principles were laid down in Keshavji Jethabhai & Brothers Ltd v Saleh Abdul [1959] EA 260, where the Court held:
i. While the creditor’s rights must be considered, each case must be determined on its own facts;
ii. Mere inability to pay in full at once is not sufficient ground for indulgence;
iii. The debtor must demonstrate bona fides by paying a fair proportion promptly; and
iv. Hardship may be considered provided it does not unfairly prejudice the creditor.
16. Similarly, in Maasai Kenya Ltd v Hardware & Steel Centre Ltd & Another [2013] eKLR, the Court cited Hildegard Ndelut v Letkina Dairies Ltd & Another [2005] eKLR, stating that:
“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 debtor 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.”
17. It is undisputed that the Respondent law firm represented the Applicant in several matters and subsequently obtained judgments following taxation of its costs. Despite this, the Applicant has made only partial payment of Kshs. 275,000 and has failed to demonstrate any credible or consistent effort to settle the remainder.
18. The Applicant has not shown bona fides by promptly paying a fair proportion of the decretal amount, nor has it provided evidence of concrete financial arrangements to sustain the proposed installments.
19. In the circumstances, and guided by the principles in Keshavji Jethabhai and Rajabali Alidina (supra), I find no sufficient cause to warrant the exercise of discretion in favour of the Applicant.
Conclusion
20. The upshot is that the Notice of Motion dated 2nd July 2024 lacks merit and is accordingly dismissed with costs to the Respondent.
21. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
27TH NOVEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
N/A…………..for the Appellant/Applicant
Odongo……………. for the Respondent
'
1. The Respondent herein, Invesco Assurance Company Limited, filed a Notice of Motion dated 2nd July 2024 seeking the following substantive orders: -
i. That this Honourable Court be pleased to consolidate the instant matter with the following matters: E893 of 2021, E894 of 2021, E897 of 2021, E899 of 2021, E902 of 2021 and E903 of 2021.
ii. That upon consolidation, the Honourable Court be pleased to allow the Respondent/Applicant to liquidate the consolidated claim of Kshs. 1,529,306/= in installments of Kshs. 100,000/= every 30th day of each month.
iii. That Costs of this Application be in the cause”
2. The Respondent stated that it had demonstrated good faith by paying Kshs. 275,000 towards settlement and by proposing a structured payment plan. It contended that the Applicant nevertheless proceeded to obtain and execute warrants of attachment and sale through Virmir and Beafact Auctioneers, and that the execution was in bad faith as it risked crippling its operations given that essential business assets had been proclaimed.
3. The Respondent further averred that its insurance business had twice been closed by regulators in 2023, causing severe financial distress. It therefore urged the Court to exercise its discretion to permit payment by installments to avoid the collapse of the company. It was contended that the application was made promptly and in good faith, and that no prejudice would be suffered by the decree-holder if stay of execution and consolidation were granted.
4. The application was opposed through a replying affidavit sworn by Julius Opini, an Advocate and partner at the firm of Onyoni Opini & Gachuba Advocates, who deposed that the application was defective and an abuse of the court process for failure to cite the relevant legal provisions.
5. Counsel argued that the Applicant had not properly invoked Order 11 Rule 3(1)(h) of the Civil Procedure Rules, 2010 on consolidation, and that consolidation could not arise because the referenced matters had already been determined and finalized.
6. He stated that the firm had represented the Applicant since 2005 in numerous matters and was owed fees exceeding Kshs. 15 million. Despite repeated demands, the Applicant failed to settle the firm’s fees, prompting taxation of bills of costs and issuance of certificates of taxation. The firm thereafter obtained judgments and commenced execution proceedings through warrants of attachment.
7. It was deposed that following proclamation, the Applicant verbally proposed to pay Kshs. 200,000 in two monthly installments of Kshs. 100,000, a proposal which the firm accepted, though the Applicant defaulted after paying only Kshs. 275,000. Later, through its legal officer, the Applicant proposed to pay Kshs. 100,000 monthly starting 15th June 2024, but the firm insisted on the earlier agreement of Kshs. 200,000 per month.
8. Mr. Opini further argued that the present motion was improperly before Court for failure to cite Order 21 Rule 12(2) of the Civil Procedure Rules, and did not meet the criteria established in Rajabali Alidina v Remtulla Alidina & Another [1961] EA 565. He contended that the proposed Kshs. 100,000 monthly installments were unreasonable given the magnitude of the debt and prayed that the application be dismissed with costs, though the firm was amenable to settlement by monthly payments of Kshs. 200,000.
Analysis and Determination
9. I have considered the pleadings, affidavits, and written submissions filed by both parties. Two issues arise for determination:
a) Whether this Court should order consolidation of the instant matter with the other suits listed; and
b) Whether the Applicant merits an order to liquidate the decretal sum by installments.
Whether the suits may be consolidated
10. On consolidation of suits, the jurisdiction to consolidate suits is donated by Order 11 Rule 3 of the Civil Procedure Rules. It is settled that the purpose of consolidation of suits is to promote efficient and expeditious resolution of related disputes. The Supreme Court in Law Society of Kenya v Centre for Human Rights & Democracy & 12 Others [2014] eKLR stated as follows on the issue:
“The essence of consolidation is to facilitate the efficient and expeditious disposal of disputes and to provide a framework for a fair and impartial dispensation of justice to the parties. Consolidation was never intended to confer any undue advantage upon the party that seeks it, nor to occasion any disadvantage upon the party who opposes it.”
11. From the record, it is evident that the matters which the Applicant seeks to consolidate with this one—namely E893, E894, E897, E899, E902 and E903 of 2021—have already been separately heard and finalized. Consolidation can only apply to pending or ongoing matters. It follows therefore that the court cannot consolidate the matters to the present suit as the matters have already been separately resolved before other courts.
12. Consequently, the prayer for consolidation is misconceived and is hereby dismissed
Whether the prayer for Payment by Installments is merited
13. The second prayer seeks leave to liquidate the decretal amount by installments of Kshs. 100,000 per month.
14. The applicable law is Order 21 Rule 12(2) of the Civil Procedure Rules which provides that:
“After passing of any such judgment or 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 instalments on such terms as it thinks fit.”
15. The guiding principles were laid down in Keshavji Jethabhai & Brothers Ltd v Saleh Abdul [1959] EA 260, where the Court held:
i. While the creditor’s rights must be considered, each case must be determined on its own facts;
ii. Mere inability to pay in full at once is not sufficient ground for indulgence;
iii. The debtor must demonstrate bona fides by paying a fair proportion promptly; and
iv. Hardship may be considered provided it does not unfairly prejudice the creditor.
16. Similarly, in Maasai Kenya Ltd v Hardware & Steel Centre Ltd & Another [2013] eKLR, the Court cited Hildegard Ndelut v Letkina Dairies Ltd & Another [2005] eKLR, stating that:
“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 debtor 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.”
17. It is undisputed that the Respondent law firm represented the Applicant in several matters and subsequently obtained judgments following taxation of its costs. Despite this, the Applicant has made only partial payment of Kshs. 275,000 and has failed to demonstrate any credible or consistent effort to settle the remainder.
18. The Applicant has not shown bona fides by promptly paying a fair proportion of the decretal amount, nor has it provided evidence of concrete financial arrangements to sustain the proposed installments.
19. In the circumstances, and guided by the principles in Keshavji Jethabhai and Rajabali Alidina (supra), I find no sufficient cause to warrant the exercise of discretion in favour of the Applicant.
Conclusion
20. The upshot is that the Notice of Motion dated 2nd July 2024 lacks merit and is accordingly dismissed with costs to the Respondent.
21. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
27TH NOVEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
N/A…………..for the Appellant/Applicant
Odongo……………. for the Respondent
'