'1. The matter before the Court arises from a Notice of Motion dated 10th November 2025 brought by the Applicants, Andrew Nyaundi Ndubi, Timothy Aroni Ndubi and Stephen Kinanga Ndubi.
2. The application is expressed to be brought under Article 159 of the Constitution, sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, and Orders 22, 42, 43 and 51 of the Civil Procedure Rules. It is supported by the Supporting Affidavit sworn on 10th November 2025 by the first Applicant, and accompanied by a Certificate of Urgency of even date.
3. The Applicants seek, principally, the setting aside and stay of warrants of arrest issued on 06th November 2025 in respect of taxed costs arising from Nyamira CMCC E038 of 2022, for which a Certificate of Costs was issued on 24th February 2025 in the sum of KES. 155,843.
4. The grounds set out in the application and in the supporting affidavit are that the warrants were issued notwithstanding the Applicants’ assertion that payments had been made to the Respondent’s advocate; that the Respondent’s advocate omitted to disclose such payments; that the Applicants are in danger of immediate arrest; and that their constitutional rights stand to be infringed unless the Court intervenes. The Applicants rely, inter alia, on several receipts annexed to their affidavit and marked “ANN 1”, together with the judgment in Nyamira CMCC E038 of 2022, which appears in the annexures as “ANN 2”.
5. The Respondent, an advocate practising as C.R. Sagwa & Co. Advocates, opposes the application through a Replying Affidavit sworn on 11th November 2025. The Respondent depones that no payment whatsoever has ever been made toward the taxed costs; that the receipts relied upon by the Applicants are unrelated to Nyamira CMCC E038 of 2022; that the Applicants’ appearances in court on more than one occasion had ended with unfulfilled promises to settle; and that the warrants of arrest issued on 06th November 2025 were procedurally issued following due taxation.
6. The Respondent further asserts that the receipts relied upon by the Applicants relate exclusively to Nyamira CM ELC Case No. E002 of 2020, where her firm acted for the Applicants, and she annexes, as CRS – 1, the Plaint filed in that ELC matter. In addition, the Respondent filed written submissions dated 12th November 2025, in which she contends that the application is grounded on misrepresentation and deliberate falsehood, and urges that equitable relief ought not be granted to a litigant who approaches the Court with unclean hands.
7. The Court has carefully reviewed the Notice of Motion dated 10th November 2025, the Supporting Affidavit sworn on the same date, the annexures contained in the document titled “E068-EXHIBITS”, the Replying Affidavit sworn on 11th November 2025, and the Respondent’s submissions dated 12th November 2025. The central question is whether the Applicants have, in fact, made payments toward the taxed costs in Nyamira CMCC E038 of 2022, and whether the warrants of arrest issued on 06th November 2025 ought to be set aside or stayed.
8. The receipts annexed by the Applicants appear on pages 1 to 3 of the exhibits bundle. The first two receipts, which reflect payments of KES. 8,000 and KES. 15,000, are both dated 11th August 2020. They bear no case number and simply indicate “Filing”. These receipts predate the filing of CMCC E038 of 2022 by approximately two years and cannot, by any legitimate construction, be associated with the taxed costs in that matter.
9. The remaining receipts appearing in the same annexures expressly bear notations referencing “Nyamira ELC E2 of 2020”, “ELC E2/2020”. This accords entirely with the Respondent’s position, as restated in her Replying Affidavit, that the receipts were issued in the course of conduct of the ELC matter in which her firm acted for the Applicants. None of the receipts bear the case number E038 of 2022, none refer to costs, taxation, settlement, or payment of a decree, and none are dated near the taxation of 24th February 2025.
10. There is therefore no evidentiary foundation for the assertion that the Applicants paid any amount toward the taxed costs in Nyamira CMCC E038 of 2022.
11. The Respondent has demonstrated that the Certificate of Costs dated 24th February 2025 remains unsatisfied. Under section 51 of the Advocates Act and Order 22 of the Civil Procedure Rules, a certificate of costs, if not set aside or varied, is enforceable as a decree. There is no evidence of any objection to the taxation, nor is there any indication that the Applicants challenged the certificate under Schedule 8 of the Advocates Remuneration Order. The warrants of arrest issued on 6th November 2025 therefore followed the ordinary statutory enforcement mechanism in the absence of payment.
12. The Applicants invoke the provisions of Order 42 Rule 6, asserting that they stand to suffer substantial loss and that the application was made without delay. Execution by way of warrant of arrest, however, does not of itself constitute substantial loss within the meaning of Order 42 Rule 6; loss must be shown to be irreparable or disproportionate, and the Applicants have not demonstrated such. They have not offered security for due performance of the decree. Further, the material placed before the Court reveals that the application was triggered only after warrants were issued and not earlier, and the use of unrelated receipts to suggest payment casts serious doubt on the Applicants’ candour. Equity cannot reward misrepresentation, and the Court cannot extend discretionary relief where the factual basis advanced has been shown to be inaccurate.
13. Having considered all the matters placed before it, the Court is satisfied that the Applicants have not demonstrated that they made any payment toward the taxed costs of KES. 155,843 in Nyamira CMCC E038 of 2022. There is therefore no lawful or factual basis to impugn the warrants of arrest issued on 06th November 2025. Furthermore, the Applicants have not met the threshold for grant of stay of execution or any equitable relief under sections 1A, 1B or 3A of the Civil Procedure Act.
14. In the result, the court find no merit in the Notice of Motion dated 10th November 2025 lacks merit and the same is accordingly dismissed with costs to the Respondent.
15. This being a miscellaneous file, it shall be closed
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2. The application is expressed to be brought under Article 159 of the Constitution, sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, and Orders 22, 42, 43 and 51 of the Civil Procedure Rules. It is supported by the Supporting Affidavit sworn on 10th November 2025 by the first Applicant, and accompanied by a Certificate of Urgency of even date.
3. The Applicants seek, principally, the setting aside and stay of warrants of arrest issued on 06th November 2025 in respect of taxed costs arising from Nyamira CMCC E038 of 2022, for which a Certificate of Costs was issued on 24th February 2025 in the sum of KES. 155,843.
4. The grounds set out in the application and in the supporting affidavit are that the warrants were issued notwithstanding the Applicants’ assertion that payments had been made to the Respondent’s advocate; that the Respondent’s advocate omitted to disclose such payments; that the Applicants are in danger of immediate arrest; and that their constitutional rights stand to be infringed unless the Court intervenes. The Applicants rely, inter alia, on several receipts annexed to their affidavit and marked “ANN 1”, together with the judgment in Nyamira CMCC E038 of 2022, which appears in the annexures as “ANN 2”.
5. The Respondent, an advocate practising as C.R. Sagwa & Co. Advocates, opposes the application through a Replying Affidavit sworn on 11th November 2025. The Respondent depones that no payment whatsoever has ever been made toward the taxed costs; that the receipts relied upon by the Applicants are unrelated to Nyamira CMCC E038 of 2022; that the Applicants’ appearances in court on more than one occasion had ended with unfulfilled promises to settle; and that the warrants of arrest issued on 06th November 2025 were procedurally issued following due taxation.
6. The Respondent further asserts that the receipts relied upon by the Applicants relate exclusively to Nyamira CM ELC Case No. E002 of 2020, where her firm acted for the Applicants, and she annexes, as CRS – 1, the Plaint filed in that ELC matter. In addition, the Respondent filed written submissions dated 12th November 2025, in which she contends that the application is grounded on misrepresentation and deliberate falsehood, and urges that equitable relief ought not be granted to a litigant who approaches the Court with unclean hands.
7. The Court has carefully reviewed the Notice of Motion dated 10th November 2025, the Supporting Affidavit sworn on the same date, the annexures contained in the document titled “E068-EXHIBITS”, the Replying Affidavit sworn on 11th November 2025, and the Respondent’s submissions dated 12th November 2025. The central question is whether the Applicants have, in fact, made payments toward the taxed costs in Nyamira CMCC E038 of 2022, and whether the warrants of arrest issued on 06th November 2025 ought to be set aside or stayed.
8. The receipts annexed by the Applicants appear on pages 1 to 3 of the exhibits bundle. The first two receipts, which reflect payments of KES. 8,000 and KES. 15,000, are both dated 11th August 2020. They bear no case number and simply indicate “Filing”. These receipts predate the filing of CMCC E038 of 2022 by approximately two years and cannot, by any legitimate construction, be associated with the taxed costs in that matter.
9. The remaining receipts appearing in the same annexures expressly bear notations referencing “Nyamira ELC E2 of 2020”, “ELC E2/2020”. This accords entirely with the Respondent’s position, as restated in her Replying Affidavit, that the receipts were issued in the course of conduct of the ELC matter in which her firm acted for the Applicants. None of the receipts bear the case number E038 of 2022, none refer to costs, taxation, settlement, or payment of a decree, and none are dated near the taxation of 24th February 2025.
10. There is therefore no evidentiary foundation for the assertion that the Applicants paid any amount toward the taxed costs in Nyamira CMCC E038 of 2022.
11. The Respondent has demonstrated that the Certificate of Costs dated 24th February 2025 remains unsatisfied. Under section 51 of the Advocates Act and Order 22 of the Civil Procedure Rules, a certificate of costs, if not set aside or varied, is enforceable as a decree. There is no evidence of any objection to the taxation, nor is there any indication that the Applicants challenged the certificate under Schedule 8 of the Advocates Remuneration Order. The warrants of arrest issued on 6th November 2025 therefore followed the ordinary statutory enforcement mechanism in the absence of payment.
12. The Applicants invoke the provisions of Order 42 Rule 6, asserting that they stand to suffer substantial loss and that the application was made without delay. Execution by way of warrant of arrest, however, does not of itself constitute substantial loss within the meaning of Order 42 Rule 6; loss must be shown to be irreparable or disproportionate, and the Applicants have not demonstrated such. They have not offered security for due performance of the decree. Further, the material placed before the Court reveals that the application was triggered only after warrants were issued and not earlier, and the use of unrelated receipts to suggest payment casts serious doubt on the Applicants’ candour. Equity cannot reward misrepresentation, and the Court cannot extend discretionary relief where the factual basis advanced has been shown to be inaccurate.
13. Having considered all the matters placed before it, the Court is satisfied that the Applicants have not demonstrated that they made any payment toward the taxed costs of KES. 155,843 in Nyamira CMCC E038 of 2022. There is therefore no lawful or factual basis to impugn the warrants of arrest issued on 06th November 2025. Furthermore, the Applicants have not met the threshold for grant of stay of execution or any equitable relief under sections 1A, 1B or 3A of the Civil Procedure Act.
14. In the result, the court find no merit in the Notice of Motion dated 10th November 2025 lacks merit and the same is accordingly dismissed with costs to the Respondent.
15. This being a miscellaneous file, it shall be closed
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