'1. The plaintiff/applicant filed a Notice of Motion application dated 28th November 2024 under the provisions of Order 51 Rule 1 of the Civil Procedure Rules, the inherent jurisdiction of the Court and all other enabling provisions of the law, seeking an order lifting and/or setting aside the warrants of arrest issued against him on 22nd November 2024.
2. The application is based on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Mr. Ashwin Shah, the plaintiff herein. Mr. Shah averred that he is critically ill suffering from dementia resulting from long-term diabetes and hypertension, rendering him incapable of responding to Court processes or appearing physically in Court. He stated that a warrant of arrest was issued against him on 22nd November 2024 due to alleged breach of Court orders by an Auctioneer, but he was unaware of this due to his medical condition, and lack of communication with his Advocates.
3. Mr. Shah denied any involvement in the Auctioneer''s conduct stating that he had no knowledge of and/or control over the execution of warrants of attachment. He urged this Court to waive his physical appearance and allow him to attend Court proceedings virtually due to his poor health. He further requested this Court to direct any sanctions to the responsible parties and spare him in light of his medical condition. He asserted that he respects this Court and sought protection as he pursues recovery of sums still owed to him by the defendant.
4. In opposition to the application, the objector/2nd respondent filed a replying affidavit sworn on 9th December 2024 by Mr. Khushal Bid, a Director of the objector company. He contended that the instant application is intended to assist the applicant to escape accountability for contempt of Court. He averred that in as much as the plaintiff claims to be mentally incapacitated and unable to communicate, he managed to instruct his Advocate to file the instant application and refer to the Notice to Show Cause, an inconsistency that calls into question the plaintiff’s credibility and capacity to depone to the affidavit in support of the application herein. He asserted that in the instant application, the plaintiff is improperly attempting to shift blame to the Auctioneer, despite the Court already having ruled on the issue of contempt.
5. Mr. Bid stated that the above notwithstanding, the plaintiff''s Advocate, by law, acts on the plaintiff’s authority and/or instructions unless expressly instructed otherwise. For this reason, he contended that the advertisement for the auction was issued under the plaintiff’s Advocate''s instructions, thereby implicating the plaintiff. He averred that the Medical Report offered by the plaintiff has no probative value to this case since it lacks evidence of severe mental incapacity, communication loss, and for being unrelated in time to the contempt incident. In addition to the foregoing, Mr. Bid asserted that the bailiff’s inability to locate the plaintiff raises further doubts about his alleged critical condition.
6. The instant application was canvassed by way of oral submissions on 14th January 2025. Mr. Mutava, learned Counsel for the plaintiff submitted that the plaintiff is suffering from cognitive impairment and lacks orientation to time and space. He explained that the plaintiff’s condition is neurological in nature, and even if he was brought to Court, he would be unable to respond to the Notice to Show Cause. Counsel stated that the plaintiff has been inaccessible to them for an extended period and his medical condition has rendered him incapable of following the progress of the case. He urged this Court to excuse the plaintiff from physically attending Court proceedings, arguing that his cognitive limitations prevent him from meaningfully participating in the same.
7. Mr. Kigata, learned Counsel of the defendant submitted that the plaintiff has not been adjudged mentally ill under the Mental Health Act so as to be said that his cognitive function has been severely diminished. Counsel contended that they support the position taken by Mr. Anthony Miano Advocate since this matter is mainly between the plaintiff and the objector.
8. Mr. Miano, learned Counsel for the objector submitted that although the plaintiff claims that he is unable to provide a coherent response to the Notice to Show Cause and would be incapable of speaking or communicating even if he appeared in Court due to severe cognitive impairment, he nevertheless managed to instruct his Advocate to file the instant application. He argued that this casts serious doubt on the plaintiff’s awareness and understanding of his own averments and reflects a deceptive character, contrary to the provisions of Rule 7 of the Oaths & Statutory Declarations Act. He contended that in light of these contradictions, it is illogical to suggest that the plaintiff is capable of sustaining a suit.
9. Mr. Miano argued that the Medical Report relied upon by the plaintiff indicates that he was admitted to Siloa Medical Centre from 21st to 28th August 2024, a period well before the Notice to Show Cause that is currently in issue. He relied on the case of Shimmers Plaza Limited v National Bank Of Kenya Limited [2013] KEHC 363 (KLR), in emphasizing the importance of upholding the Court’s dignity. He further submitted that allowing the application herein would cause significant prejudice to the objector whose business operations have already been completely obliterated.
10. In a rejoinder, Mr. Mutava submitted that the Doctor in his Medical Report states that the plaintiff was diagnosed to be suffering from dementia six (6) months before the filing of the affidavit.
ANALYSIS AND DETERMINATION.
11. I have considered the application herein, the grounds on the face of it, and the affidavit filed in support thereof. I have also considered the replying affidavit filed by the objector and the oral submissions made by Counsel for the parties. The issue that arises for determination is whether the warrants of arrest issued against the plaintiff on 22nd November 2024 should be lifted and/or set aside.
12. In a Ruling delivered on 4th October 2024, this Court issued Notices to Show Cause against the plaintiff and Julius Onyango t/a Agunja Traders Limited, to show cause why they should not be punished for being in contempt of the Ruling delivered by the Court on 22nd March 2023, which expressly stated that the goods attached were not for disposal, but were to be preserved to satisfy any decree that may be eventually passed against the defendant after a full hearing of the case.
13. The Notice to Show Cause was subsequently extracted and served on the plaintiff and Julius Onyango t/a Agunja Traders Limited. It was scheduled for hearing on 23rd October 2024. On that day, Mr. Mutava Advocate informed this Court that he was out of town since he believed that only the Auctioneer was required to attend Court on that day. He sought for another date for the hearing of the Notice to Show Cause. This Court issued other Notices to Show Cause to both the plaintiff and the Auctioneer to attend Court on 21st November 2024 at noon, to show cause why they should not be punished for contempt of Court.
14. The record clearly shows that the plaintiff did not appear in Court on 21st November 2024. His Counsel, Mr. Mutava, informed this Court that he had been unable to reach the plaintiff. He further stated that the last time we were in Court, the plaintiff was travelling to India for treatment. He asked that the plaintiff be excused from attending Court. In the end, the Court noted that it had already issued Notices to Show Cause requiring the plaintiff and Julius Onyango t/a Agunja Traders Limited to attend Court on 23rd October 2024, but the plaintiff’s Counsel sought a rescheduling of the matter to 21st November 2024, therefore, the said Counsel ought to have informed his client, the plaintiff, of his obligation to appear in Court on both dates. This Court thus concluded that the only effective way to secure the plaintiff’s attendance in Court was by issuing a warrant of arrest, and proceeded to do so.
15. The plaintiff has now filed the present application seeking an order to lift or set aside the aforesaid warrant of arrest, citing critical illness. He claims to be suffering from dementia caused by long-term diabetes and hypertension, which has rendered him incapable of responding to Court processes or appearing in person. The plaintiff averred that due to his medical condition and lack of communication with his Advocates, he was unaware of the Notice to Show Cause and the requirement for his attendance in Court. As a result, Counsel for the plaintiff urged this Court to waive the plaintiff’s physical Court appearance and instead permit him to attend future Court proceedings virtually, on account of his poor health.
16. Upon reviewing the Medical Report annexed to the plaintiff’s supporting affidavit, which forms the basis of the present application, it is evident that the said Report is dated 25th November 2024. It indicates that the plaintiff was admitted to Hospital from 24th to 27th August 2024. That during that time, he presented with symptoms including increased forgetfulness, difficulty performing daily tasks, and elevated blood pressure. The Doctor observed a progressive decline in the plaintiff’s cognitive function over the preceding six (6) months, marked by forgetfulness and confusion, leading to a diagnosis of mild dementia. The Medical Report notes that while the plaintiff appeared alert, he was slightly confused. A neurological examination revealed mild cognitive impairment, specifically impaired orientation to time and place. The Doctor recommended ongoing monitoring of the plaintiff’s cognitive condition and advised the plaintiff and his family to consider a referral to a Neurologist for further evaluation.
17. This Court however notes that the Medical Report relied upon by the plaintiff does not indicate that the plaintiff is unable to communicate, nor does it recommend that he avoids public spaces or refrains from physically attending Court. Moreover, the plaintiff has neither alleged nor demonstrated that he pursued the recommended referral to a Neurologist for further evaluation, despite claiming to be critically ill. Further, while the plaintiff cites mental incapacity as the basis for seeking to lift or set aside the warrant of arrest, it is noted that he was able to instruct his Advocate to file the instant application and also swore an affidavit in support of it. This therefore begs the question, if the plaintiff was capable of giving legal instructions and swearing an affidavit, how then can he credibly claim to be incapable of talking or communicating or to be suffering dementia?
18. Additionally, although the plaintiff claims that his current medical condition prevents him from physically moving from one place to another, he has neither alleged nor demonstrated that the instructions to his Advocates to file the application herein were given from his residence. In addition to the foregoing, a review of the affidavit in support of the instant application reveals that it was sworn before an Advocate and a Commissioner for Oaths, which strongly suggests that the plaintiff had to leave his home and appear in person before the said Commissioner for purposes of swearing and commissioning of the said affidavit. This therefore raises questions as to why, despite the plaintiff being able to leave his house for that purpose, he now claims that he is unable to appear before this Court for compliance with the Court Orders, to personally explain the challenges or difficulties he is facing.
19. It is worth noting that on 24th November 2024, Counsel for the plaintiff stated that the last time this matter was in Court during the last appearance on 23rd October 2024, when this Court issued Notices to Show Cause requiring the plaintiff and Julius Onyango t/a Agunja Traders Limited to appear in Court on 21st November 2024, the plaintiff was travelling to India for treatment. However, this Court observes that the affidavit in support of the instant application neither mentions that claim nor does it adduce evidence in support of it.
20. This Court notes the plaintiff’s claim that due to his illness, he was completely inaccessible to his Advocates and unaware of both the Notice to Show Cause and the requirement to appear in Court, sharply contradicts his Advocate’s earlier statement made on 21st November 2024, indicating that the plaintiff was travelling to India for treatment. This inconsistency raises a pertinent question that if the plaintiff was truly unreachable and unaware of the Court proceedings due to his medical condition, how then did his Advocate come to know that he was travelling to India for treatment.
21. In light of the foregoing, I am not persuaded that the reasons advanced by the plaintiff were sufficient to justify his failure to appear in Court on 23rd October 2024 & 21st November 2024.
22. Consequently, this Court finds that the plaintiff has not made out a case to warrant the setting aside and/or lifting of the warrants of arrest issued against him on 22nd November 2024.
23. In the end, I hold that the plaintiff’s application dated 28th November 2024 is not merited. It is hereby dismissed with costs to the objector/2nd respondent.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 3rd day of October 2025. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the present of:-
Mr. Mutava for plaintiff/applicant
Mr. Kigata for the defendant/1st respondent
Mr. Miano for the objector/2nd respondent
Ms B. Wokabi – Court Assistant.
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2. The application is based on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Mr. Ashwin Shah, the plaintiff herein. Mr. Shah averred that he is critically ill suffering from dementia resulting from long-term diabetes and hypertension, rendering him incapable of responding to Court processes or appearing physically in Court. He stated that a warrant of arrest was issued against him on 22nd November 2024 due to alleged breach of Court orders by an Auctioneer, but he was unaware of this due to his medical condition, and lack of communication with his Advocates.
3. Mr. Shah denied any involvement in the Auctioneer''s conduct stating that he had no knowledge of and/or control over the execution of warrants of attachment. He urged this Court to waive his physical appearance and allow him to attend Court proceedings virtually due to his poor health. He further requested this Court to direct any sanctions to the responsible parties and spare him in light of his medical condition. He asserted that he respects this Court and sought protection as he pursues recovery of sums still owed to him by the defendant.
4. In opposition to the application, the objector/2nd respondent filed a replying affidavit sworn on 9th December 2024 by Mr. Khushal Bid, a Director of the objector company. He contended that the instant application is intended to assist the applicant to escape accountability for contempt of Court. He averred that in as much as the plaintiff claims to be mentally incapacitated and unable to communicate, he managed to instruct his Advocate to file the instant application and refer to the Notice to Show Cause, an inconsistency that calls into question the plaintiff’s credibility and capacity to depone to the affidavit in support of the application herein. He asserted that in the instant application, the plaintiff is improperly attempting to shift blame to the Auctioneer, despite the Court already having ruled on the issue of contempt.
5. Mr. Bid stated that the above notwithstanding, the plaintiff''s Advocate, by law, acts on the plaintiff’s authority and/or instructions unless expressly instructed otherwise. For this reason, he contended that the advertisement for the auction was issued under the plaintiff’s Advocate''s instructions, thereby implicating the plaintiff. He averred that the Medical Report offered by the plaintiff has no probative value to this case since it lacks evidence of severe mental incapacity, communication loss, and for being unrelated in time to the contempt incident. In addition to the foregoing, Mr. Bid asserted that the bailiff’s inability to locate the plaintiff raises further doubts about his alleged critical condition.
6. The instant application was canvassed by way of oral submissions on 14th January 2025. Mr. Mutava, learned Counsel for the plaintiff submitted that the plaintiff is suffering from cognitive impairment and lacks orientation to time and space. He explained that the plaintiff’s condition is neurological in nature, and even if he was brought to Court, he would be unable to respond to the Notice to Show Cause. Counsel stated that the plaintiff has been inaccessible to them for an extended period and his medical condition has rendered him incapable of following the progress of the case. He urged this Court to excuse the plaintiff from physically attending Court proceedings, arguing that his cognitive limitations prevent him from meaningfully participating in the same.
7. Mr. Kigata, learned Counsel of the defendant submitted that the plaintiff has not been adjudged mentally ill under the Mental Health Act so as to be said that his cognitive function has been severely diminished. Counsel contended that they support the position taken by Mr. Anthony Miano Advocate since this matter is mainly between the plaintiff and the objector.
8. Mr. Miano, learned Counsel for the objector submitted that although the plaintiff claims that he is unable to provide a coherent response to the Notice to Show Cause and would be incapable of speaking or communicating even if he appeared in Court due to severe cognitive impairment, he nevertheless managed to instruct his Advocate to file the instant application. He argued that this casts serious doubt on the plaintiff’s awareness and understanding of his own averments and reflects a deceptive character, contrary to the provisions of Rule 7 of the Oaths & Statutory Declarations Act. He contended that in light of these contradictions, it is illogical to suggest that the plaintiff is capable of sustaining a suit.
9. Mr. Miano argued that the Medical Report relied upon by the plaintiff indicates that he was admitted to Siloa Medical Centre from 21st to 28th August 2024, a period well before the Notice to Show Cause that is currently in issue. He relied on the case of Shimmers Plaza Limited v National Bank Of Kenya Limited [2013] KEHC 363 (KLR), in emphasizing the importance of upholding the Court’s dignity. He further submitted that allowing the application herein would cause significant prejudice to the objector whose business operations have already been completely obliterated.
10. In a rejoinder, Mr. Mutava submitted that the Doctor in his Medical Report states that the plaintiff was diagnosed to be suffering from dementia six (6) months before the filing of the affidavit.
ANALYSIS AND DETERMINATION.
11. I have considered the application herein, the grounds on the face of it, and the affidavit filed in support thereof. I have also considered the replying affidavit filed by the objector and the oral submissions made by Counsel for the parties. The issue that arises for determination is whether the warrants of arrest issued against the plaintiff on 22nd November 2024 should be lifted and/or set aside.
12. In a Ruling delivered on 4th October 2024, this Court issued Notices to Show Cause against the plaintiff and Julius Onyango t/a Agunja Traders Limited, to show cause why they should not be punished for being in contempt of the Ruling delivered by the Court on 22nd March 2023, which expressly stated that the goods attached were not for disposal, but were to be preserved to satisfy any decree that may be eventually passed against the defendant after a full hearing of the case.
13. The Notice to Show Cause was subsequently extracted and served on the plaintiff and Julius Onyango t/a Agunja Traders Limited. It was scheduled for hearing on 23rd October 2024. On that day, Mr. Mutava Advocate informed this Court that he was out of town since he believed that only the Auctioneer was required to attend Court on that day. He sought for another date for the hearing of the Notice to Show Cause. This Court issued other Notices to Show Cause to both the plaintiff and the Auctioneer to attend Court on 21st November 2024 at noon, to show cause why they should not be punished for contempt of Court.
14. The record clearly shows that the plaintiff did not appear in Court on 21st November 2024. His Counsel, Mr. Mutava, informed this Court that he had been unable to reach the plaintiff. He further stated that the last time we were in Court, the plaintiff was travelling to India for treatment. He asked that the plaintiff be excused from attending Court. In the end, the Court noted that it had already issued Notices to Show Cause requiring the plaintiff and Julius Onyango t/a Agunja Traders Limited to attend Court on 23rd October 2024, but the plaintiff’s Counsel sought a rescheduling of the matter to 21st November 2024, therefore, the said Counsel ought to have informed his client, the plaintiff, of his obligation to appear in Court on both dates. This Court thus concluded that the only effective way to secure the plaintiff’s attendance in Court was by issuing a warrant of arrest, and proceeded to do so.
15. The plaintiff has now filed the present application seeking an order to lift or set aside the aforesaid warrant of arrest, citing critical illness. He claims to be suffering from dementia caused by long-term diabetes and hypertension, which has rendered him incapable of responding to Court processes or appearing in person. The plaintiff averred that due to his medical condition and lack of communication with his Advocates, he was unaware of the Notice to Show Cause and the requirement for his attendance in Court. As a result, Counsel for the plaintiff urged this Court to waive the plaintiff’s physical Court appearance and instead permit him to attend future Court proceedings virtually, on account of his poor health.
16. Upon reviewing the Medical Report annexed to the plaintiff’s supporting affidavit, which forms the basis of the present application, it is evident that the said Report is dated 25th November 2024. It indicates that the plaintiff was admitted to Hospital from 24th to 27th August 2024. That during that time, he presented with symptoms including increased forgetfulness, difficulty performing daily tasks, and elevated blood pressure. The Doctor observed a progressive decline in the plaintiff’s cognitive function over the preceding six (6) months, marked by forgetfulness and confusion, leading to a diagnosis of mild dementia. The Medical Report notes that while the plaintiff appeared alert, he was slightly confused. A neurological examination revealed mild cognitive impairment, specifically impaired orientation to time and place. The Doctor recommended ongoing monitoring of the plaintiff’s cognitive condition and advised the plaintiff and his family to consider a referral to a Neurologist for further evaluation.
17. This Court however notes that the Medical Report relied upon by the plaintiff does not indicate that the plaintiff is unable to communicate, nor does it recommend that he avoids public spaces or refrains from physically attending Court. Moreover, the plaintiff has neither alleged nor demonstrated that he pursued the recommended referral to a Neurologist for further evaluation, despite claiming to be critically ill. Further, while the plaintiff cites mental incapacity as the basis for seeking to lift or set aside the warrant of arrest, it is noted that he was able to instruct his Advocate to file the instant application and also swore an affidavit in support of it. This therefore begs the question, if the plaintiff was capable of giving legal instructions and swearing an affidavit, how then can he credibly claim to be incapable of talking or communicating or to be suffering dementia?
18. Additionally, although the plaintiff claims that his current medical condition prevents him from physically moving from one place to another, he has neither alleged nor demonstrated that the instructions to his Advocates to file the application herein were given from his residence. In addition to the foregoing, a review of the affidavit in support of the instant application reveals that it was sworn before an Advocate and a Commissioner for Oaths, which strongly suggests that the plaintiff had to leave his home and appear in person before the said Commissioner for purposes of swearing and commissioning of the said affidavit. This therefore raises questions as to why, despite the plaintiff being able to leave his house for that purpose, he now claims that he is unable to appear before this Court for compliance with the Court Orders, to personally explain the challenges or difficulties he is facing.
19. It is worth noting that on 24th November 2024, Counsel for the plaintiff stated that the last time this matter was in Court during the last appearance on 23rd October 2024, when this Court issued Notices to Show Cause requiring the plaintiff and Julius Onyango t/a Agunja Traders Limited to appear in Court on 21st November 2024, the plaintiff was travelling to India for treatment. However, this Court observes that the affidavit in support of the instant application neither mentions that claim nor does it adduce evidence in support of it.
20. This Court notes the plaintiff’s claim that due to his illness, he was completely inaccessible to his Advocates and unaware of both the Notice to Show Cause and the requirement to appear in Court, sharply contradicts his Advocate’s earlier statement made on 21st November 2024, indicating that the plaintiff was travelling to India for treatment. This inconsistency raises a pertinent question that if the plaintiff was truly unreachable and unaware of the Court proceedings due to his medical condition, how then did his Advocate come to know that he was travelling to India for treatment.
21. In light of the foregoing, I am not persuaded that the reasons advanced by the plaintiff were sufficient to justify his failure to appear in Court on 23rd October 2024 & 21st November 2024.
22. Consequently, this Court finds that the plaintiff has not made out a case to warrant the setting aside and/or lifting of the warrants of arrest issued against him on 22nd November 2024.
23. In the end, I hold that the plaintiff’s application dated 28th November 2024 is not merited. It is hereby dismissed with costs to the objector/2nd respondent.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 3rd day of October 2025. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the present of:-
Mr. Mutava for plaintiff/applicant
Mr. Kigata for the defendant/1st respondent
Mr. Miano for the objector/2nd respondent
Ms B. Wokabi – Court Assistant.
'