Pan Africa Sacco Limited v Omido [2023] KECPT 856 (KLR) | Stay Of Execution | Esheria

Pan Africa Sacco Limited v Omido [2023] KECPT 856 (KLR)

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Pan Africa Sacco Limited v Omido (Tribunal Case 372 of 2018) [2023] KECPT 856 (KLR) (21 September 2023) (Ruling)

Neutral citation: [2023] KECPT 856 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 372 of 2018

BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

September 21, 2023

Between

Pan Africa Sacco Limited

Claimant

and

Martin Omido

Respondent

Ruling

1. There are two Applications before the Tribunal for determination. The first application is the Respondent’s Notice of Motion Application dated 14th November, 2022, filed on 16th November 2022, while the second applications is the Respondent’s Notice of Motion Application dated 7th February, 2023.

2. Notice of Motion dated 14. 11. 2022In this Application, the Respondent seeks the following orders:1. Spent2. Spent3. That the Honourable Tribunal be pleased to order the Respondent/ Applicant herein to settle the Decretal of Kshs. 1,590,575/= plus interest and costs by way of a deposit of monthly installments of Kshs. 30,007/= of such amount as the Honorable Tribunal may order in the circumstances of the Respondent.4. That costs of this Application be provided for:

3. The Application is premised on the grounds there under and supported by the Supporting Affidavit sworn by the Respondent/Applicant on 14th November, 2022, filed on 16th November, 2022, and on the supplementary affidavit sworn on 23rd February, 2023.

4. Substantively, the Respondent/Applicant sought orders for payment of the decretal sum by instalments; and prayed for stay of execution pending the hearing of the Application.

5. The grounds of the Application set out on the body of the Application and the Respondent’s Supporting and Supplementary Affidavits include:a.That the Respondent is unemployed and is not financially capable of settling the substantial decretal sum of Kshs. 1,590,575/= plus interest and costs in one lumpsum payment and seeks the honorable tribunals’ intervention to be allowed to settle the decretal sum by way of reasonable installments.b.That the respondent is acting in good faith in his reasonable proposal for settlement and it is in the interest of both parties for the tribunal to auction the Respondent’s proposal.c.That the Respondent already made some payments as a sign of goodwill.d.That if the claimant executes the decree, the Respondent stands to suffer substantial loss.e.That the Respondent/ applicant is willing and able to settle the decretal sum by way of monthly installments of Kshs. 30,000/= as per his bank statements.f.That previously, the Respondent’s/ Applicant’s written proposal through his advocates, to settle the decretal sum with an initial payment of Kshs. 400,000/= followed by monthly installments of Kshs. 30,000/= was declined by the Claimant.g.That however, the Respondent/Applicant proceeded to pay the sum of Kshs. 180,000/= vide bankers cheque and awaits his terminal dues so as to make further payment.

6. The Claimant, in opposition to the Respondent’s Application dated 14th November 2022, filed the Replying Affidavit sworn by Denis Kirigwi the Claimant’s Treasurer, sworn on 15th March, 2023.

7. In the Replying Affidavit, the Claimant prays that the Respondent/Application be dismissed with costs for the reasons that:a.The Respondent has not given sufficient reasons for the stay of execution as required by Order 21 of the Civil Procedure Rules.b.The Respondent ‘s claim that he is not able to pay has not been supported by any documents ; and that the claimant has not filed an affidavit of means to support his claim that he is unable to pay the decretal sum.c.The Respondent is a Senior Information Technology (IT) Manager at the consolidated Bank of Kenya and is a person of means with ability to pay the decretal sum.d.The proposed payment of Kshs. 30,000/= per month is unreasonable and unconscionable because it will take the Respondent 6. 7 years to settle the loans and such a long period of payment is detrimental to the interest of the Claimant.e.The sum of Kshs. 180,000/= paid by the Respondent was paid after a promise to pay the full amount hence not done in good faith.f.The Claimant does not consent to the Kshs. 30,000/= payment proposal for the following reasons;i.That the Respondent is employed by the consolidated bank and has ability to pay the decretal amount in lump sum.ii.That the Respondent used the loan to purchase and develop capital assets including homes which he should dispose and settle the decretal sum.iii.The Claimant expects full payment of its debts to improve the liquidity of the Claimant to safeguard the interests of members, and that the proposed payment of Kshs. 30,000/= will greatly prejudice the Claimant.

8. The Application proceeded by way of written submissions.

9. The Respondent/Applicant submissions on both Applications are dated 23rd February, 2023 and were filed on 3rd March, 2023. The Claimant ‘s submissions on both applications are dated 15th August 2023,

10. We have considered of the Application dated 14th November,2022, the Supporting Affidavit, the Supplementary thereto and also the Replying Affidavit of the Claimant together with submissions of both parties and have the following issues to consider:

Whether Or Not The Respondent /applicant Is Entitled To An Order For Stay Of Execution: 11. Under prayer 2 of the Application dated 14. 11. 2022, the Respondent/Applicant prayed that there be a stay of execution of the judgment and decree given by the Tribunal on 28th July 2022 pending interparties hearing of the Application seeking to liquidate the decretal sum by instalments.

12. The nature of the prayer is such that for purposes of this ruling, it is spent.

13. Order 22 Rule 22 (1) empowers the court to which a decree has been sent for execution upon sufficient course being shown stay execution of such decree for a reasonable time to enable the Judgment Debtor to apply to the court by which the decree was passed, or to any court having Appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay the execution, or for any other order relating to the decree or execution which might have been issued thereby, or if the Application for execution has been made thereto.

14. The Respondent/Applicant , despite failing to make the substantive prayer for stay of execution, has demonstrated the importance of stay of execution of the decree herein in terms of Order 22 Rule 22 (1), as regards his Application for orders to settle the decretal sum by way of installments. The Application to pay the decretal sum by way of installments is an order relating to the decree in terms of the provisions of Order 22 Rule 22 (1) of the procedure Rules. It follows therefore that it becomes impossible consider the prayer for payment by way of installments without considering the issue of stay of execution, because in the event that the Application to pay decretal sum by installment succeeds, it would be in futility if there is no order for stay of execution.

15. We therefore find that there being evidence of execution proceedings against the Respondent/Applicant, in the circumstances, he is entitled to an order for stay of execution, on account of his Application for orders to settle the decretal amount by way of installments.

16. We rely on section 3A of the Civil Procedure Act to exercise the inherent powers of the court, bearing in mind that the tribunal is classified in the constitution of Kenya as a subordinate court.

17. We are also guided by Article 159 of the Constitution of Kenya, that justice will be done and administered to all without undue regard to procedural technicalities.

Whether Or Not The Respondent/applicant Is Entitled To An Order For Payment Of The Decretal Sum By Installments. 18. Order 21 Rule 12 (2) of the Civil Procedure Rules provides that the court after passing of a decree 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 installments on such terms as to the payment of interest, the attachment of the property of the Judgment -Debtor or the taking of security from him, or otherwise as it thinks fit.

19. It is the evidence of the Respondent/Applicant that there is sufficient cause to warrant an order for payment of the decretal sum herein by way of installments for reasons that he has no employment currently and is unable to pay the amount in a lumpsum due to hardship.

20. The Claimant/Respondent submitted that the Respondent/Applicant has not shown sufficient cause to warrant an order to pay the decretal sum by installments and avers that the Respondent/ Applicant ought to pay the entire decretal amount as he is a person of means with properties which he bought and developed with the borrowed money.

21. The Claimant/Respondent also states that it needs to be paid money borrowed by members to remain a float financially.

22. It is not in doubt that the Respondent /Applicant is indebted to the Claimant/Respondent neither is it in doubt that the Claimant is entitled to the fruits of the judgment herein.

23. In determining the issue herein, we are called upon to exercise our discretion in a manner that is in the interest of justice.

24. We find that indeed, the Respondent/Applicant is willing to pay the decretal sum as demonstrated in his payment of the sum of Kshs. 180,000/= and note that his employment was terminated on 1st February 2023 as per the termination letter Dated 14th February 2023 a copy of which is annexed to the supplementary affidavit as exhibit MO1.

25. The Respondent/ Applicant’s Bank Statements a copy of which are annexed to the supplementary affidavit as exhibit MO2 do not present the Respondent as a person of means.

26. Similarly, the Claimant/Respondent has not adduced any evidence of a new job held by the Respondent or property in the name of the Respondent/Applicant which can be sold and the proceeds used to liquidate the entire decretal sum. We therefore have restrict ourselves to the evidence before us and find that the Respondent/Applicant has shown sufficient cause to be entitled to the order to pay the decretal sum by installments.

Whether Or Not The Respondent/applicant’s Proposal To Liquidate The Decretal Sum Herein By Monthly Installments Of Kshs. 30,000/= Is Fair Or Reasonable. 27. In exercising our discretion herein, we consider that the judgment herein, plus costs and interest totals in excess of Kshs. 2,000,000/=.

28. We find that the amount of Kshs. 30,000/= proposed as the monthly payment by the Respondent/Applicant is too low in the circumstances as compared to the decretal amount. Allowing the Respondent/ Applicant to pay the said amount in monthly instalments would not only be unfair and unreasonable but it would cause prejudice and detriment to the Claimant/Respondent.

29. In conclusion, having considered, the Respondent/Applicant’s Application dated 14. 11. 2022 we make the following orders:a.That there be a Stay of Execution of the Tribunal’s judgment delivered on 28th February, 2022, pending full payment of the decretal sum herein.b.That the Respondent /Judgment-Debtor is allowed to pay the decretal sum herein by monthly installments, subject to the following terms.a.That the Respondent/Judgment Debtor pays up front the sum of Kshs. 400,000/= within thirty (30) days from the date hereof; and thereafter, to liquidate the balance by monthly installments of Kshs. 50,000/= commencing on or before the 25th day of October 2023 until payment in full.b.That in default of payment of any one installment, execution to issue against the Respondent/Judgment Debtor.c.The costs of this Application are awarded to the Claimant /Decree-Holder.

30. The Notice of Motion dated 7. 3.2023. In the Application dated 7th March, 2023 the Respondent/Applicant seeks orders:a.Spentb.Spentc.Spentd.Spente.That costs of this application be provided for.

31. The Respondent/Applicant in this Application sought to expedite the prosecution of the Application dated 14. 11. 2022 as well as obtain stay of execution pending the hearing and determination thereof.

32. The said issues are spent, the same having been dealt with in the Application dated 14. 11. 2022 foregoing and/or due to lapse of time.

33. We therefore find and hold that the Respondent ‘s Application dated 7. 2.2023 is overtaken and the same is struck out with no order as to costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF SEPTEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 21. 9.2023. .........................HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 21. 9.2023. .........................HON. BEATRICE SAWE MEMBER SIGNED 21. 9.2023. .........................HON. FRIDAH LOTUIYA MEMBER SIGNED 21. 9.2023. .........................Hon. Philip Gichuki Member Signed 21. 9.2023. .........................HON. MICHAEL CHESIKAW MEMBER SIGNED 21. 9.2023. .........................HON. PAUL AOL MEMBER SIGNED 21. 9.2023. .........................TRIBUNAL CLERK JEMIMAHObel advocate for Respondent/Applicant.Ms. Muia advocate for the Claimant.