REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW MISC. APPLICATION NO. E023 OF 2026
EUNICE NYAMBURA MAINA………………………………..APPLICANT
VERSUS
FESTUS GAKUOH…………………………………...…..1 ST RESPONDENT
THE HON. ATTORNEY GENERAL………………..…2 ND RESPONDENT
AND
THE MILIMANI SMALL CLAIMS COURT……INTERESTED PARTY
RULING ON APPLICATION FOR LEAVE TO APPLY
1. The applicant Eunice Nyambura Maina vide her chamber summons dated 16/2/2026 and supported by a statutory statement and affidavit sworn by herself on the even date seeks leave of court to apply for Judicial Review orders of certiorari to remove into this court and quash the execution proceedings pending before the Small Claims Court at Nairobi vide SCC COOMM E10736/2024 which proceedings seek out the applicant judgment debtor to show cause why she cannot be committed to civil jail for failure to settle decree of that court.
2. According to the applicant, the Small Claims Court is devoid of any jurisdiction to entertain such proceedings and make such orders in execution of decree, which Notice to Show Cause and or civil jail orders can only be issued buy a civil court via the Civil Procedure Rules and not the Small Claims Court which has its own Rules of Procedure.
3. I have heard Mr. Mariaria Advocate for the applicant this afternoon, arguing the application on behalf of the applicant, exparte under Order 53 Rules 1 (1) and (2) of the Civil Procedure Rules. I have also perused the applicable law, being the Small Claims Court Act and the Rules made thereunder.
4. Section 17 of the Act on Procedure of the Court provides that:
17. Procedure of Small Claims Court
Subject to this Act and Rules, the Court shall have control of its own procedure in the determination of claims before it and, in the exercise of that control, the Court shall have regard to the principles of natural justice.
5. Additionally, section 39 of the Act under PART V provides for Execution of Decrees as follows:
39. Procedure for execution
Where a judgment debtor fails to pay to the decree holder any sum specified in a decree or order, the Court may—
(a)where the judgment debtor's movable property is insufficient to satisfy the decree, order execution by attachment and sale of the judgment debtor's immovable property;
(b)order the attachment of the salary of the judgement debtor; or
(c)suspend the execution of the warrant and the order either wholly or in part on such conditions as to security or otherwise as the Court may determine.
6. Section 50 of the Act empowers the Chief Justice to make Rules for the Court. The section outlines that:
50. Power to make Rules
(1) The Chief Justice may make Rules of practice and procedure for the better functioning of the Court.
(2)For the purpose of Article 94(6) of the Constitution—(a)the purpose and objective of the delegation under this section is to enable the Chief Justice to make rules to provide for the better carrying into effect the provisions of this Act;
(b)the authority of the Chief Justice to make Rules under this Act shall be limited to bringing into effect the provisions of this Act and fulfilment of the objectives specified under this section;
(c)the principles and standards applicable to the Rules made under this section are those set out in the Interpretation and General Provisions Act ( Cap. 2 ) and the Statutory Instruments Act ( Cap. 2A ).
7. Pursuant to the above provisions of the Act on the power to make Rules of the Court, the Small Claims Rules, 2019 , promulgated vide Legal Notice No. 145 of 2019 and which came into effect on 30/8/2019 provide the procedure to be applied in matters filed before the Small Claims Court; right from filing to execution process.
8. My attention is drawn to Rule 25 of the Rules which provide for procedure for enforcement of orders and decrees. The Rule provides:
(1) Any order or decree of the court shall be enforceable in accordance with the Civil Procedure Rules.
(2) …..
9. Under Rule 26, on effect of non-compliance, the Rule provides that:
Where a debtor fails to satisfy the payment schedule on acts in breach of the proposal to comply with a court order given under this Rule, the payment is recoverable, and the order is enforceable in accordance with the Civil Procedure Rules.
10. The applicable Civil Procedure Rules on execution of decrees and orders is Order 22 of the Civil Procedure Rules . One of the modes of execution of decree under Order 22 Rule 31 is by way of Notice to show cause. A judgment debtor may be issued with notice to show cause why they cannot be taken into detention in prison, while Order 22 Rule 32 provides for a warrant of arrest to direct a judgment debtor to be brought up to Court unless the amount which he has been ordered to pay together with interest and costs if any to which he is liable has been paid sooner.
11. Rule 33 then provides for payment of subsistence allowance before any judgment debtor is committed to civil jail. The entire Order 22 of the Civil procedure Rules provides an elaborate procedure for execution of decrees and orders including attachment and sale of movable property of the judgment debtor.
12. The question to be answered in the present case, therefore, is whether the Small Claims Court has jurisdiction to hear and determine a Notice to Show Cause and to commit a Judgment Debtor to person for non-settlement of decree.
13. From my above analysis, it is clear that the Small Claims Court has jurisdiction to enforce its decrees or orders in the manner provided for under Order 22 of the Civil Procedure Rules which includes Notice to Show Cause and arrest and committal to civil jail.
14. Accordingly, I am not persuaded that the applicants’ intended substantive motion is prima facie arguable. I find the application as intended to be an academic exercise.
15. The application for leave to apply for judicial review orders is in the circumstances found to be devoid of any merit. The same is hereby dismissed without any orders as to costs.
16. This file is hereby closed.
Dated, Signed & Delivered at Nairobi this 23 rd Day of February, 2026
R.E. ABURILI
JUDGE
2 | JR MISC APP NO. E023 OF 2026 RULING
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW MISC. APPLICATION NO. E023 OF 2026
EUNICE NYAMBURA MAINA………………………………..APPLICANT
VERSUS
FESTUS GAKUOH…………………………………...…..1 ST RESPONDENT
THE HON. ATTORNEY GENERAL………………..…2 ND RESPONDENT
AND
THE MILIMANI SMALL CLAIMS COURT……INTERESTED PARTY
RULING ON APPLICATION FOR LEAVE TO APPLY
1. The applicant Eunice Nyambura Maina vide her chamber summons dated 16/2/2026 and supported by a statutory statement and affidavit sworn by herself on the even date seeks leave of court to apply for Judicial Review orders of certiorari to remove into this court and quash the execution proceedings pending before the Small Claims Court at Nairobi vide SCC COOMM E10736/2024 which proceedings seek out the applicant judgment debtor to show cause why she cannot be committed to civil jail for failure to settle decree of that court.
2. According to the applicant, the Small Claims Court is devoid of any jurisdiction to entertain such proceedings and make such orders in execution of decree, which Notice to Show Cause and or civil jail orders can only be issued buy a civil court via the Civil Procedure Rules and not the Small Claims Court which has its own Rules of Procedure.
3. I have heard Mr. Mariaria Advocate for the applicant this afternoon, arguing the application on behalf of the applicant, exparte under Order 53 Rules 1 (1) and (2) of the Civil Procedure Rules. I have also perused the applicable law, being the Small Claims Court Act and the Rules made thereunder.
4. Section 17 of the Act on Procedure of the Court provides that:
17. Procedure of Small Claims Court
Subject to this Act and Rules, the Court shall have control of its own procedure in the determination of claims before it and, in the exercise of that control, the Court shall have regard to the principles of natural justice.
5. Additionally, section 39 of the Act under PART V provides for Execution of Decrees as follows:
39. Procedure for execution
Where a judgment debtor fails to pay to the decree holder any sum specified in a decree or order, the Court may—
(a)where the judgment debtor's movable property is insufficient to satisfy the decree, order execution by attachment and sale of the judgment debtor's immovable property;
(b)order the attachment of the salary of the judgement debtor; or
(c)suspend the execution of the warrant and the order either wholly or in part on such conditions as to security or otherwise as the Court may determine.
6. Section 50 of the Act empowers the Chief Justice to make Rules for the Court. The section outlines that:
50. Power to make Rules
(1) The Chief Justice may make Rules of practice and procedure for the better functioning of the Court.
(2)For the purpose of Article 94(6) of the Constitution—(a)the purpose and objective of the delegation under this section is to enable the Chief Justice to make rules to provide for the better carrying into effect the provisions of this Act;
(b)the authority of the Chief Justice to make Rules under this Act shall be limited to bringing into effect the provisions of this Act and fulfilment of the objectives specified under this section;
(c)the principles and standards applicable to the Rules made under this section are those set out in the Interpretation and General Provisions Act ( Cap. 2 ) and the Statutory Instruments Act ( Cap. 2A ).
7. Pursuant to the above provisions of the Act on the power to make Rules of the Court, the Small Claims Rules, 2019 , promulgated vide Legal Notice No. 145 of 2019 and which came into effect on 30/8/2019 provide the procedure to be applied in matters filed before the Small Claims Court; right from filing to execution process.
8. My attention is drawn to Rule 25 of the Rules which provide for procedure for enforcement of orders and decrees. The Rule provides:
(1) Any order or decree of the court shall be enforceable in accordance with the Civil Procedure Rules.
(2) …..
9. Under Rule 26, on effect of non-compliance, the Rule provides that:
Where a debtor fails to satisfy the payment schedule on acts in breach of the proposal to comply with a court order given under this Rule, the payment is recoverable, and the order is enforceable in accordance with the Civil Procedure Rules.
10. The applicable Civil Procedure Rules on execution of decrees and orders is Order 22 of the Civil Procedure Rules . One of the modes of execution of decree under Order 22 Rule 31 is by way of Notice to show cause. A judgment debtor may be issued with notice to show cause why they cannot be taken into detention in prison, while Order 22 Rule 32 provides for a warrant of arrest to direct a judgment debtor to be brought up to Court unless the amount which he has been ordered to pay together with interest and costs if any to which he is liable has been paid sooner.
11. Rule 33 then provides for payment of subsistence allowance before any judgment debtor is committed to civil jail. The entire Order 22 of the Civil procedure Rules provides an elaborate procedure for execution of decrees and orders including attachment and sale of movable property of the judgment debtor.
12. The question to be answered in the present case, therefore, is whether the Small Claims Court has jurisdiction to hear and determine a Notice to Show Cause and to commit a Judgment Debtor to person for non-settlement of decree.
13. From my above analysis, it is clear that the Small Claims Court has jurisdiction to enforce its decrees or orders in the manner provided for under Order 22 of the Civil Procedure Rules which includes Notice to Show Cause and arrest and committal to civil jail.
14. Accordingly, I am not persuaded that the applicants’ intended substantive motion is prima facie arguable. I find the application as intended to be an academic exercise.
15. The application for leave to apply for judicial review orders is in the circumstances found to be devoid of any merit. The same is hereby dismissed without any orders as to costs.
16. This file is hereby closed.
Dated, Signed & Delivered at Nairobi this 23 rd Day of February, 2026
R.E. ABURILI
JUDGE
2 | JR MISC APP NO. E023 OF 2026 RULING