Michael Makosala v Jacqueline Ondari [2021] KECPT 245 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.626 OF 2015

MICHAEL MAKOSALA.....................................................CLAIMANT

VERSUS

JACQUELINE ONDARI................................................RESPONDENT

RULING

The matter for determination is Application dated 30. 8.2017 Respondent Application dated seeks the following Orders:

1. That the Application be certified urgent heard exparte and service be dispensed within the first instance.

2. That the Applicant be and is hereby allowed to settle the claim installment of Kshs.10,000/= per month until payment in full.

3. That there be a stay of execution pending the hearing of this Application and settlement thereof.

4. That cost be in the cause, which Application is supported by the Affidavit of Jacquline Ondari and on other facts /grounds such as:

a. The Claimant was a close colleague of the Applicant at the time and after the dismissal of the Applicant.

b. The debt was acquired without any malice at all.

c. The Claimant is a man of means thereof hence my proposal may not affect his financial status thereof.

d. The Applicant is a shopkeeper assistant with a such huge family responsibilities.

The same is supported by an Affidavit of Jackline Ondari the Respondent herein.

The Application is opposed vide the Replying Affidavit of Michael Makosala deponed on 11. 10. 2017 and filed on 22. 2.2021.

The Applicant filed written submissions on 11. 5.2021 together with a further Affidavit and the Respondent filed written submissions on 3. 6.2021.

The gist of the Notice of Motion application dated 30. 8.2017 is that the Respondent seeks stay of execution and to settle the decretal amount at Kshs.10,000/= per month.

We have carefully considered the submissions of the parties. We note that judgment was entered on 11. 4.2017 in the sum of Kshs.341,160/03 plus costs and interest in the suit. The Judgment Creditor  filed a Bill of cost was issued at Kshs.78,950/= on 24. 8.2017. Thereafter  the Applicants filed the instant Application and a stay of execution was granted as 31. 8.2017. Thereafter, no action was taken on the prosecution of the said Application until 5. 11. 2020 when the Judgment Debtor sought for Notice to Show Cause be issued. On 18. 2.2021 the parties stated that they were negotiating a settlement but the parties did not agree on the terms of settlement hence requested for the Application to be determined.

We note that the judgment Debtor has been enjoying orders of stay of execution since 31. 8.2017. The Application was filed under Certificate of Urgency and the Judgment Debtor requested to settle  the decretal amount by way of Kshs.10,000/= installments. It has been over 4 years since the proposal for settlement was proposed but the Judgment Debtor has not paid any single coin towards offsetting the decretal amount to show that they have been acting in good faith yet they have been enjoying stay of execution orders. There is no reasonable explanation offered to show why the judgment Debtor has never prosecuted their Applications over the last 4 years or why they have never attempted to settle the decretal amount. If the Judgment Debtor had been paying the installments proposed, the decretal amount would have been substantially offset and/or cleared (noting that Kshs.10,000/= x 4x12=480,000/=) hence the matter would have been settled by now. We note that once a party files an Application under Certificate of Urgency, they must exercise due  diligence to ensure that the same is heard and determined within the shortest time frame possible.

However, the judgment debtor has been enjoying stay orders and has never bothered to offset the decretal amount unless by paying a single installment.

Litigation must come to an end at one point and the judgment creditor is entitled to enjoy the fruits of their judgment. The Judgment Debtor has not demonstrated any good faith towards the payment of the decretal amount yet they have been enjoying stay orders. We note that the Judgment Creditor has suffered enough at the hands of the Judgment Debtor.

We also note the age of the matter and the explanation given by the Judgment Debtor, in which explanations are not reasonable since the matter was determined way before the Covid-19 pandemic set in.

We therefore find that the Application dated 30. 8.2017 has no merits and dismiss the same with costs assessed at Kshs.15,000/=.

The Judgment Creditor to proceed to issue a Notice to Show Cause accordingly.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND  DAY OF SEPTEMBER, 2021.

Hon. B. Kimemia  Chairperson  Signed 2. 9.2021

Hon. J. Mwatsama Deputy Chairperson Signed 2. 9.2021

Mr. Gitonga Kamiti Member  Signed 2. 9.2021

Mr. B. Akusala  Member  Signed 2. 9.2021

Tribunal Clerk  R. Leweri

Getanda advocate for Respondent/Applicant

Auma holding brief for Mongla for Judgment Creditor

Hon. B. Kimemia  Chairperson  Signed 2. 9.2021