By a Notice of Motion dated 12th March 2026, expressed to be brought under Order 21 Rule 12(2) of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act, the Applicant/Judgment Debtor seeks the following orders:
a. Spent
b.THAT the Honourable Court be pleased to order that the Applicant/Judgment Debtor be allowed to satisfy the Decree herein by way of monthly instalments of ksh.15,000/- until the decretal sum is liquidated in full.
c. That the costs of the Application be provided for.
2. The Application is based on the grounds on the face of it and the supporting affidavit sworn by vincent masaku, the Applicant herein on 12th March 2026 and the documents annexed thereto.
3. The Decree arose from the determination of the Office of the Data Protection Commissioner, delivered on 9th April 2025 in Complaint No. 0040 of 2025. In that determination, the Applicant was directed to delete the Decree Holders’ wedding footage from his platforms and to pay them compensation of Kshs.650,000/-.
4. By the Motion dated 28th July 2025, the Decree Holders moved this Court under section 64 of the Data Protection Act for adoption and enforcement of that determination. The record contains an affidavit of service sworn on 11th August 2025 stating that the Motion and the Court’s directions were served upon the Applicant through his WhatsApp number 0718 109 247.
5. The Applicant did not respond to or attend the adoption proceedings. The Court consequently adopted the determination as an order of the Court and granted leave to enforce it as a decree. Consequently, a decree was issued on 13th November 2025.
6. Execution followed but on 13th March 2026, the Applicant filed the instant Application and was granted a temporary stay of further execution on condition that he pays Kshs.40,000/ within three days and a further Kshs.40,000/- on or before 10th April 2026. The order expressly provided that the stay would lapse automatically upon default. The Applicant subsequently complied with the interim conditions within the time given.
The Applicant’s Case
7. The Applicant filed an affidavit of means. His case is that he is a self-employed photographer whose income depends on irregular engagements such as weddings, portraits and corporate functions.
8. He states that he has neither a regular salary, savings nor liquid assets sufficient to meet the decree in one lump sum. He further states that the proclaimed property consists of cameras and related equipment which constitute the tools by which he earns his livelihood.
9. The Applicant initially offered an immediate payment of Kshs.20,000 and monthly installments of Kshs.15,000. In the affidavit of means, he refers to the Kshs.80,000 already paid and annexes a merchant M-Pesa statement for the period between 1st March and 25th June 2026.
10. In his submissions, the Applicant contends that the statement demonstrates a fluctuating, hand-to-mouth income and that sale of his equipment would extinguish his capacity to generate the very income from which the decree may be paid. He maintains that the proposed installment reflects his genuine earning capacity and is not intended to delay the Decree Holder’s claim.
11. He relies, among other decisions, on Keshvaji Jethabhai & Bros Limited v Saleh Abdulla [1959] EA 260, Equatorial Commercial Bank Limited v Danson Buya Mungatana [2017] eKLR, Cabro East Africa Limited v Rosoga Investments Limited [2019] eKLR and Peter Muriungi v Trustee Registered Catholic Parish D.O.M. Laare [2020] eKLR.
The Respondent’ Case
12. The Decree Holders have opposed the application through the replying affidavit sworn by the 1st Respondent and the written submissions on record. They contend that the Applicant was served before the ODPC and again in the adoption proceedings but did not participate, and only approached the Court after execution commenced.
13. They confirm receipt of Kshs.80,000 but submit that it was paid pursuant to the Court’s conditional order and cannot properly be presented as a voluntary demonstration of good faith. They further point out that the Applicant made no additional payment after 2nd April 2026 while the Motion remained pending.
14. The Decree Holders challenge the adequacy of the financial disclosure. They observe that the merchant statement does not reflect the Kshs.80,000 payments, reveals transfers to an Equity Bank account, and is not accompanied by bank statements, the Applicant’s personal M-Pesa statement, income declarations, a schedule of assets and liabilities, or a breakdown of ordinary and business expenses.
15. They contend that Kshs.15,000 per month would take at least thirty-eight months to clear the principal balance of Kshs.570,000, without accounting for interest and costs. In their view, that period would unjustifiably postpone their enjoyment of the fruits of the decree.
16. They rely principally on the following authorities: Keshvaji Jethabhai & Bros Limited v Saleh Abdulla (1959), Diamond Star General Trading LLC v Ambrose D. O. Rachier t/a Rachier & Amollo Advocates [2018] eKLR, Kabaru & another v Maina [2025] KEHC 4785 (KLR), BM Mung’ata & Company Advocates v Kamia [2026] KEHC 5826 (KLR) and Kahuki v Badar Hardware & 5 others [2026] KEMC 130 (KLR). They urge the Court to dismiss the Motion with costs.
Analysis and Determination
17. I have considered the Notice of Motion dated 12th March 2026, the affidavits including the affidavit of means, the parties’ respective submissions, the authorities cited and the entire record. The single issue for determination is whether the Applicant has shown sufficient cause for the Court to permit payment of the decretal sum by installments and, if so, upon what terms.
18. Questions relating to the validity of the ODPC proceedings, service before that office, or the merits of its determination are not prayers in the Motion now under determination. Neither can an application under Order 21 Rule 12 serve as an appeal, review or collateral challenge to the subsisting decree. The Court must therefore confine itself to the mode and time of payment.
19. Order 21 Rule 12(2) of the Civil Procedure Rules provides that, after a decree has been passed, the Court may, on the judgment debtor’s application and with the decree holder’s consent, or without that consent for sufficient cause shown, postpone payment or order payment by installments on such terms as to interest, attachment, security or otherwise as it thinks fit.
20. The text of the rule makes two matters plain. First, the power is discretionary. Secondly, in the absence of consent, sufficient cause must be demonstrated by the judgment debtor. The burden does not shift to the decree holder merely because immediate execution may occasion hardship.
21. The controlling principles were stated by the Court of Appeal for Eastern Africa in Keshvaji Jethabhai & Bros Limited v Saleh Abdulla [1959] EA 260, as follows:
a) whilst creditors’ rights must be considered each case must be considered on its own merits and discretion exercised
accordingly;
b) the mere inability of a debtor to pay in full at once is not a sufficient reason for exercise of the discretion;
c) the debtor should be required to show he is bona fides by arranging prompt payment of a fair proportion;
d) Hardship of the debtor might be a factor, but it is a question in each case whether some indulgence can fairly be given to
the debtor without prejudicing the creditor.
22. In A. Rajabali Alidina v Remtulla Alidina & another [1961] EA 565, the Court identified guiding principles in which the court can exercise discretion under Order 21 Rule 12.They include the circumstances under which the debt was incurred, the debtor’s conduct, financial position, and bona fides in offering a fair immediate payment as relevant considerations. Those principles have consistently guided similar matters.
23. The discretion must, however, be exercised judicially. The case of Mbogo & another v Shah [1968] EA 93 remains relevant in that discretionary power must not be exercised on wrong principles or in a manner that produces injustice. It follows that the Court may neither surrender the decree holder’s right to prompt satisfaction nor impose terms which the evidence shows the debtor cannot realistically meet.
24. The first consideration is financial means. The Applicant’s merchant M-Pesa statement is relevant evidence, but it is not a complete account of his financial position. It records total receipts of Kshs.298,600 and payments of Kshs.288,119 between 1st March 2026 and 25th June 2026. It also discloses transfers to an Equity Bank account and to the Applicant’s personal mobile account.
25. The corresponding bank statement, personal M-Pesa statement, tax or income records, schedule and value of business assets, liabilities, and a reasoned account of monthly personal and business expenses were not produced. The Court is consequently unable to accept the assertion that Kshs.15,000 is the maximum affordable installment merely on the Applicant’s word.
26. That omission is material because a debtor asking the Court to postpone enforcement, controls the evidence of his means. As the High Court observed in Equatorial Commercial Bank Limited v Danson Buya Mungatana (2017), the debtor should disclose average income, expenses and the surplus available to service the decree; otherwise, the Court would effectively permit payment at the debtor’s own time and on his own terms.
27. The second consideration is conduct and bona fides. The Applicant complied punctually with the interim order and paid Kshs.80,000 before the stipulated dates. That compliance is relevant and counts towards satisfaction of the decree.
28. It must, however, be correctly characterized. Paragraph 5 of the affidavit of means describes the payments as voluntary on the part of the Judgment debtor. They were not. They were express conditions of the stay granted on 13th March 2026. The payments therefore demonstrate obedience to a court order, but weak in demonstrating spontaneous bona fides than a payment initiated before execution or beyond what the Court compelled.
29. The record also shows service of the adoption Motion in August 2025 and no response by the Applicant. The present application was filed only after attachment. Further, despite receiving Kshs.298,600 through the merchant account during the disclosed period, the Applicant made no payment beyond the Kshs.80,000 ordered by the Court. Those circumstances weigh against his assertion that the proposed arrangement represents utmost good faith.
30. The third consideration is the reasonableness of the proposal. After crediting Kshs.80,000 against the principal award of Kshs.650,000, a balance of Kshs.570,000 remains unpaid, exclusive of any lawful interest and costs. At Kshs.15,000 per month, the principal balance alone would take thirty-eight months. Interest and costs would extend that period.
31. A payment plan of that duration would place substantially all the economic burden of delay upon the Decree Holders. It would also be inconsistent with the monthly turnover disclosed in the Applicant’s own statement. I therefore find that the proposal of Kshs.15,000 per month is not a fair or reasonable proposal within the principles in Keshvaji Jethabhai.
32. Order 21 Rule 12 expressly empowers the Court to impose terms different from those proposed. In Cabro East Africa Limited v Rosoga Investments Limited (2019), the Court adjusted the proposed installment to a figure which balanced the debtor’s circumstances with the creditor’s right to prompt payment. Similarly, the Court may preserve execution rights while granting a measured indulgence.
33. There is evidence that the Applicant earns his livelihood from photography and that the proclaimed cameras and equipment are used to generate income. An immediate forced sale of the core tools of that trade may impair his earning capacity and, in practical terms, diminish the prospects of orderly and consistent satisfaction of the decree. That consideration is relevant, but it does not immunize all his assets from execution or excuse full and candid disclosure.
34. Balancing the incomplete disclosure and the history of delay against the Kshs.80,000/- already paid, the fluctuating nature of the disclosed receipts, and the need to preserve a viable source of repayment, I am satisfied that limited indulgence may fairly be granted. It must, however, be on stricter terms than those proposed by the Applicant.
35. A further immediate payment of Kshs.1000,000/-, followed by monthly installments of Kshs.50,000/-, will materially shorten the repayment period while remaining proportionate to the financial activity disclosed. Interest lawfully due under the decree must continue to accrue, and default in any one payment must restore the Decree Holders’ right to execute for the entire outstanding balance.
36. Costs ordinarily follow the event under section 27 of the Civil Procedure Act. The application became necessary because the decree remained unsatisfied and execution had commenced. Although the Applicant obtained conditional relief, the Decree Holders should not bear the cost of the indulgence extended to him.
37. The upshot is that the Notice of Motion dated 12th March 2026 succeeds only to the limited extent and upon the strict terms set out below:
a) The Applicant/Judgment Debtor shall, within thirty (30) days from the date of this Ruling, pay the Decree Holders a further sum of Kshs.100,0000/.
b) Thereafter, the Applicant/Judgment Debtor shall pay the outstanding decretal sum in consecutive monthly installments of Kshs.50,000, the first installment falling due on the last day of the month immediately following payment under paragraph (a), and subsequent installments on the last day of each succeeding month until payment in full.
c) The Kshs.80,000 paid on 16th March 2026 and 2nd April 2026 shall be credited towards the decree.
d) Any interest lawfully due under the decree shall continue to accrue on the outstanding balance until payment in full.
e) There shall be a stay of further execution for so long as the Applicant strictly complies with the orders under paragraphs (a) and (b) above.
f) In default of the payment in paragraph (a), or of any single monthly installment under paragraph (b), the stay shall lapse automatically and the Decree Holders shall be at liberty to execute forthwith for the entire outstanding balance, together with lawful interest and costs, without further reference to the Court.
g) The Applicant/Judgment Debtor shall bear the costs of the application.
It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 30TH DAY OF JULY, 2026 VIRTUALLY, THROUGH THE MICROSOFT TEAMS PLATFORM.
KENNEDY KANDET
JUDGE
IN THE PRESENCE OF:
KIMATA FOR THE APPLICANT/JUDGMENT DEBTOR
NO APPEARANCE FOR THE RESPONDENT.
COURT ASSISTANT: AGGREY.
a. Spent
b.THAT the Honourable Court be pleased to order that the Applicant/Judgment Debtor be allowed to satisfy the Decree herein by way of monthly instalments of ksh.15,000/- until the decretal sum is liquidated in full.
c. That the costs of the Application be provided for.
2. The Application is based on the grounds on the face of it and the supporting affidavit sworn by vincent masaku, the Applicant herein on 12th March 2026 and the documents annexed thereto.
3. The Decree arose from the determination of the Office of the Data Protection Commissioner, delivered on 9th April 2025 in Complaint No. 0040 of 2025. In that determination, the Applicant was directed to delete the Decree Holders’ wedding footage from his platforms and to pay them compensation of Kshs.650,000/-.
4. By the Motion dated 28th July 2025, the Decree Holders moved this Court under section 64 of the Data Protection Act for adoption and enforcement of that determination. The record contains an affidavit of service sworn on 11th August 2025 stating that the Motion and the Court’s directions were served upon the Applicant through his WhatsApp number 0718 109 247.
5. The Applicant did not respond to or attend the adoption proceedings. The Court consequently adopted the determination as an order of the Court and granted leave to enforce it as a decree. Consequently, a decree was issued on 13th November 2025.
6. Execution followed but on 13th March 2026, the Applicant filed the instant Application and was granted a temporary stay of further execution on condition that he pays Kshs.40,000/ within three days and a further Kshs.40,000/- on or before 10th April 2026. The order expressly provided that the stay would lapse automatically upon default. The Applicant subsequently complied with the interim conditions within the time given.
The Applicant’s Case
7. The Applicant filed an affidavit of means. His case is that he is a self-employed photographer whose income depends on irregular engagements such as weddings, portraits and corporate functions.
8. He states that he has neither a regular salary, savings nor liquid assets sufficient to meet the decree in one lump sum. He further states that the proclaimed property consists of cameras and related equipment which constitute the tools by which he earns his livelihood.
9. The Applicant initially offered an immediate payment of Kshs.20,000 and monthly installments of Kshs.15,000. In the affidavit of means, he refers to the Kshs.80,000 already paid and annexes a merchant M-Pesa statement for the period between 1st March and 25th June 2026.
10. In his submissions, the Applicant contends that the statement demonstrates a fluctuating, hand-to-mouth income and that sale of his equipment would extinguish his capacity to generate the very income from which the decree may be paid. He maintains that the proposed installment reflects his genuine earning capacity and is not intended to delay the Decree Holder’s claim.
11. He relies, among other decisions, on Keshvaji Jethabhai & Bros Limited v Saleh Abdulla [1959] EA 260, Equatorial Commercial Bank Limited v Danson Buya Mungatana [2017] eKLR, Cabro East Africa Limited v Rosoga Investments Limited [2019] eKLR and Peter Muriungi v Trustee Registered Catholic Parish D.O.M. Laare [2020] eKLR.
The Respondent’ Case
12. The Decree Holders have opposed the application through the replying affidavit sworn by the 1st Respondent and the written submissions on record. They contend that the Applicant was served before the ODPC and again in the adoption proceedings but did not participate, and only approached the Court after execution commenced.
13. They confirm receipt of Kshs.80,000 but submit that it was paid pursuant to the Court’s conditional order and cannot properly be presented as a voluntary demonstration of good faith. They further point out that the Applicant made no additional payment after 2nd April 2026 while the Motion remained pending.
14. The Decree Holders challenge the adequacy of the financial disclosure. They observe that the merchant statement does not reflect the Kshs.80,000 payments, reveals transfers to an Equity Bank account, and is not accompanied by bank statements, the Applicant’s personal M-Pesa statement, income declarations, a schedule of assets and liabilities, or a breakdown of ordinary and business expenses.
15. They contend that Kshs.15,000 per month would take at least thirty-eight months to clear the principal balance of Kshs.570,000, without accounting for interest and costs. In their view, that period would unjustifiably postpone their enjoyment of the fruits of the decree.
16. They rely principally on the following authorities: Keshvaji Jethabhai & Bros Limited v Saleh Abdulla (1959), Diamond Star General Trading LLC v Ambrose D. O. Rachier t/a Rachier & Amollo Advocates [2018] eKLR, Kabaru & another v Maina [2025] KEHC 4785 (KLR), BM Mung’ata & Company Advocates v Kamia [2026] KEHC 5826 (KLR) and Kahuki v Badar Hardware & 5 others [2026] KEMC 130 (KLR). They urge the Court to dismiss the Motion with costs.
Analysis and Determination
17. I have considered the Notice of Motion dated 12th March 2026, the affidavits including the affidavit of means, the parties’ respective submissions, the authorities cited and the entire record. The single issue for determination is whether the Applicant has shown sufficient cause for the Court to permit payment of the decretal sum by installments and, if so, upon what terms.
18. Questions relating to the validity of the ODPC proceedings, service before that office, or the merits of its determination are not prayers in the Motion now under determination. Neither can an application under Order 21 Rule 12 serve as an appeal, review or collateral challenge to the subsisting decree. The Court must therefore confine itself to the mode and time of payment.
19. Order 21 Rule 12(2) of the Civil Procedure Rules provides that, after a decree has been passed, the Court may, on the judgment debtor’s application and with the decree holder’s consent, or without that consent for sufficient cause shown, postpone payment or order payment by installments on such terms as to interest, attachment, security or otherwise as it thinks fit.
20. The text of the rule makes two matters plain. First, the power is discretionary. Secondly, in the absence of consent, sufficient cause must be demonstrated by the judgment debtor. The burden does not shift to the decree holder merely because immediate execution may occasion hardship.
21. The controlling principles were stated by the Court of Appeal for Eastern Africa in Keshvaji Jethabhai & Bros Limited v Saleh Abdulla [1959] EA 260, as follows:
a) whilst creditors’ rights must be considered each case must be considered on its own merits and discretion exercised
accordingly;
b) the mere inability of a debtor to pay in full at once is not a sufficient reason for exercise of the discretion;
c) the debtor should be required to show he is bona fides by arranging prompt payment of a fair proportion;
d) Hardship of the debtor might be a factor, but it is a question in each case whether some indulgence can fairly be given to
the debtor without prejudicing the creditor.
22. In A. Rajabali Alidina v Remtulla Alidina & another [1961] EA 565, the Court identified guiding principles in which the court can exercise discretion under Order 21 Rule 12.They include the circumstances under which the debt was incurred, the debtor’s conduct, financial position, and bona fides in offering a fair immediate payment as relevant considerations. Those principles have consistently guided similar matters.
23. The discretion must, however, be exercised judicially. The case of Mbogo & another v Shah [1968] EA 93 remains relevant in that discretionary power must not be exercised on wrong principles or in a manner that produces injustice. It follows that the Court may neither surrender the decree holder’s right to prompt satisfaction nor impose terms which the evidence shows the debtor cannot realistically meet.
24. The first consideration is financial means. The Applicant’s merchant M-Pesa statement is relevant evidence, but it is not a complete account of his financial position. It records total receipts of Kshs.298,600 and payments of Kshs.288,119 between 1st March 2026 and 25th June 2026. It also discloses transfers to an Equity Bank account and to the Applicant’s personal mobile account.
25. The corresponding bank statement, personal M-Pesa statement, tax or income records, schedule and value of business assets, liabilities, and a reasoned account of monthly personal and business expenses were not produced. The Court is consequently unable to accept the assertion that Kshs.15,000 is the maximum affordable installment merely on the Applicant’s word.
26. That omission is material because a debtor asking the Court to postpone enforcement, controls the evidence of his means. As the High Court observed in Equatorial Commercial Bank Limited v Danson Buya Mungatana (2017), the debtor should disclose average income, expenses and the surplus available to service the decree; otherwise, the Court would effectively permit payment at the debtor’s own time and on his own terms.
27. The second consideration is conduct and bona fides. The Applicant complied punctually with the interim order and paid Kshs.80,000 before the stipulated dates. That compliance is relevant and counts towards satisfaction of the decree.
28. It must, however, be correctly characterized. Paragraph 5 of the affidavit of means describes the payments as voluntary on the part of the Judgment debtor. They were not. They were express conditions of the stay granted on 13th March 2026. The payments therefore demonstrate obedience to a court order, but weak in demonstrating spontaneous bona fides than a payment initiated before execution or beyond what the Court compelled.
29. The record also shows service of the adoption Motion in August 2025 and no response by the Applicant. The present application was filed only after attachment. Further, despite receiving Kshs.298,600 through the merchant account during the disclosed period, the Applicant made no payment beyond the Kshs.80,000 ordered by the Court. Those circumstances weigh against his assertion that the proposed arrangement represents utmost good faith.
30. The third consideration is the reasonableness of the proposal. After crediting Kshs.80,000 against the principal award of Kshs.650,000, a balance of Kshs.570,000 remains unpaid, exclusive of any lawful interest and costs. At Kshs.15,000 per month, the principal balance alone would take thirty-eight months. Interest and costs would extend that period.
31. A payment plan of that duration would place substantially all the economic burden of delay upon the Decree Holders. It would also be inconsistent with the monthly turnover disclosed in the Applicant’s own statement. I therefore find that the proposal of Kshs.15,000 per month is not a fair or reasonable proposal within the principles in Keshvaji Jethabhai.
32. Order 21 Rule 12 expressly empowers the Court to impose terms different from those proposed. In Cabro East Africa Limited v Rosoga Investments Limited (2019), the Court adjusted the proposed installment to a figure which balanced the debtor’s circumstances with the creditor’s right to prompt payment. Similarly, the Court may preserve execution rights while granting a measured indulgence.
33. There is evidence that the Applicant earns his livelihood from photography and that the proclaimed cameras and equipment are used to generate income. An immediate forced sale of the core tools of that trade may impair his earning capacity and, in practical terms, diminish the prospects of orderly and consistent satisfaction of the decree. That consideration is relevant, but it does not immunize all his assets from execution or excuse full and candid disclosure.
34. Balancing the incomplete disclosure and the history of delay against the Kshs.80,000/- already paid, the fluctuating nature of the disclosed receipts, and the need to preserve a viable source of repayment, I am satisfied that limited indulgence may fairly be granted. It must, however, be on stricter terms than those proposed by the Applicant.
35. A further immediate payment of Kshs.1000,000/-, followed by monthly installments of Kshs.50,000/-, will materially shorten the repayment period while remaining proportionate to the financial activity disclosed. Interest lawfully due under the decree must continue to accrue, and default in any one payment must restore the Decree Holders’ right to execute for the entire outstanding balance.
36. Costs ordinarily follow the event under section 27 of the Civil Procedure Act. The application became necessary because the decree remained unsatisfied and execution had commenced. Although the Applicant obtained conditional relief, the Decree Holders should not bear the cost of the indulgence extended to him.
37. The upshot is that the Notice of Motion dated 12th March 2026 succeeds only to the limited extent and upon the strict terms set out below:
a) The Applicant/Judgment Debtor shall, within thirty (30) days from the date of this Ruling, pay the Decree Holders a further sum of Kshs.100,0000/.
b) Thereafter, the Applicant/Judgment Debtor shall pay the outstanding decretal sum in consecutive monthly installments of Kshs.50,000, the first installment falling due on the last day of the month immediately following payment under paragraph (a), and subsequent installments on the last day of each succeeding month until payment in full.
c) The Kshs.80,000 paid on 16th March 2026 and 2nd April 2026 shall be credited towards the decree.
d) Any interest lawfully due under the decree shall continue to accrue on the outstanding balance until payment in full.
e) There shall be a stay of further execution for so long as the Applicant strictly complies with the orders under paragraphs (a) and (b) above.
f) In default of the payment in paragraph (a), or of any single monthly installment under paragraph (b), the stay shall lapse automatically and the Decree Holders shall be at liberty to execute forthwith for the entire outstanding balance, together with lawful interest and costs, without further reference to the Court.
g) The Applicant/Judgment Debtor shall bear the costs of the application.
It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 30TH DAY OF JULY, 2026 VIRTUALLY, THROUGH THE MICROSOFT TEAMS PLATFORM.
KENNEDY KANDET
JUDGE
IN THE PRESENCE OF:
KIMATA FOR THE APPLICANT/JUDGMENT DEBTOR
NO APPEARANCE FOR THE RESPONDENT.
COURT ASSISTANT: AGGREY.