RULING
1. Before me is the Notice of Motion dated 11/6//2024 seeking orders inter alia that the court gives an order that the applicant do settle the decretal sum in monthly installments of Kshs.20,000/= to the full payment.
2. The application is brought under Article 159(2) (d) of the Constitution , Sections 1A, 3A of the Civil Procedure Act Order 40, Order 50 Rule 1 and Order 21 Rule 12(1) and (2) of the Civil Procedure Rule.
3. The application is supported by the affidavit of Thomas Muindu Lili to the effect that he was served with copy of warrant of sale of property in execution of a decree and a warrant of attachment of movable property dated 30/5/2024, a proclamation dated 3/6/2024 – notifying him of the intended sale of the listed property, a copy of the auctioneers fees totaling Kshs. 58,133 – all annexed but that he was not served with the decree.
4. That his advocate proposed on his behalf the settlement of the sum by installments of Kshs. 20,000/= but the same was rejected.
5. That the properties are jointly owned with his wife, that the current economic times are hard and he is unable to raise more than Kshs. 20,000/= per month from his unstable farming due to the fact that he is a retired elderly person with no steady income.
6. The application is opposed through the replying affidavit of Faith Mueni the first respondent sworn on 19/7/2024.
7. She deposes that the applicant participated in all the proceedings and was aware of the orders of the court – that the Deputy Registrar granted him 45 days to pay the costs after delivery of the ruling on 25/4/2024.
8. It is deponed that the application has no merit as the proper procedure for execution of a decree was followed – and that the applicant has resisted the execution of the decree via crude means and now wants the court to deny her, her lawful costs which she incurred during the appeal.
9. I have carefully considered the application and the only issue to be determined is whether the application has any merit.
10. Order 21 Rule 12 is the applicable law and at Rule 12(1) gives the court, the discretion to be exercised where there is sufficient reason, at the passing of in a decree for money, to postpone the payment or order payment by installments.
11. At Order 21 Rule 12 (2) - the court, on the application of the judgment debtor and with the consent of the decree holder or without consent but for sufficient cause shown, order the payment of the amount decreed be paid by installments or the payment be postponed and if payment by installments, the court shall lay out the terms on interest, on the attachment of property, on the taking of security from him or otherwise – as the court thinks fit.
12. Order 21 Rule 9 states that the amount may be in a decree or in the order. The applicant was aware of the costs upon the ruling of the court. It states: Where the amount of costs has been—
(a) agreed between the parties;
(b) fixed by the judge or magistrate before the decree is drawn;
(c) certified by the registrar under section 68A of the Advocates (Remuneration) Order (Sub. Leg. Cap. 16); or
(d) taxed by the court, the amount of costs may be stated in the decree or order.
(2) In all other cases, and where the costs have not in fact been stated in the decree or order in accordance with subrule (1), after the amount of the costs has been taxed or otherwise ascertained, it shall be stated in a separate certificate to be signed by the taxing officer, or, in a subordinate court, by the magistrate
13. The applicant cannot hide under the excuse that he was not served with the decree.
14. The applicant has proposed payment of the decretal sum at Kshs. 20,000/= per month. The decretal sum is Kshs. 307,458. The proposal of Kshs. 20,000/= has been rejected by the 1st respondent. In addition the applicant has not demonstrated that the proclaimed property is co-owned with anyone in particular, leave alone his wife - neither has he demonstrated his income to the court and hence the required threshold for sufficient reason has not been met.
15. In the circumstances, I find that the following order would be reasonable –
1. that the applicant pays to the 1st respondent ½ the decretal sum within 30 days hereof,
2. that the other half and any incidental costs and interests in 6 equal installments with effects from 5/2/2025 with payment in full. In default of any one payment, execution to issue.
16. The respondent will have costs of this application
Dated, Signed and Delivered via CTS this 18th October 2024
Mumbua T Matheka
Judge
Ms Nelima/Ms Elizabeth Court Assistants
DM Mutinda Advocates for the applicant
Wechenje & Mariga LLP, advocates for the Respondent