1. Before this Court is the Notice of Motion dated 2nd March 2026 in which the Applicant seeks, inter alia, orders that this Court calls for the court file in Mombasa CMCC MCCC No. E1928 of 2021, exercises its supervisory jurisdiction over the proceedings therein, sets aside warrants of arrest issued against him, grants stay of execution of the judgment and decree, and issues directions regarding the reconstruction of the trial court file.
2. The application is premised on the grounds appearing on its face and is supported by the affidavit sworn by the Applicant on 2nd March 2026. The Applicant depones that warrants of arrest were issued against him on 2nd March 2026 despite the presence of his advocate in court. He contends that the Notice to Show Cause dated 5th February 2026 expressly permitted attendance either in person or through an advocate or duly authorized representative.
3. The Applicant further avers that although he is aware of the judgment entered against him, he has not been supplied with copies of the proceedings and judgment despite making a formal request. He also complains that the subordinate court has been operating using a reconstructed skeleton file and contends that the reconstruction process was irregular and undertaken without adherence to proper procedure. He therefore urges this Court to intervene in exercise of its supervisory jurisdiction under Article 165 of the Constitution.
4. The Respondent opposed the application through a Replying Affidavit sworn on 10th March 2026. She depones that she is the decree holder in Mombasa CMCC MCCC No. E1928 of 2021 and maintains that appearance by counsel alone was insufficient to satisfy the Notice to Show Cause issued against the judgment debtor.
5. The Respondent further avers that warrants of arrest constitute a lawful mode of execution under Order 22 of the Civil Procedure Rules and that the Applicant has not demonstrated inability to satisfy the decretal sum of Kshs. 10,143,600. She contends that despite requesting proceedings and judgment over eleven months ago, the Applicant has never filed an appeal.
6. The Respondent disputes the Applicant's allegations regarding reconstruction of the court file and states that reconstruction is primarily an administrative function of the court registry. She characterizes the present application as an appeal disguised as a miscellaneous application and an abuse of the court process.
7. The Respondent also filed a Notice of Preliminary Objection and a Notice of Motion dated 10th March 2026 seeking, among other orders, the setting aside of interim orders granted on 4th March 2026 and the striking out or dismissal of the Applicant's application.
8. The grounds of the Preliminary Objection are that this Court lacks jurisdiction to grant stay of execution in the absence of an appeal; that the Applicant seeks appellate relief without filing an appeal; and that the provisions relied upon, namely Sections 18 and 80 of the Civil Procedure Act, are inapplicable and render the application fatally defective.
9. In support of her application, the Respondent depones that the Applicant has consistently sought to delay the conclusion of the proceedings before the subordinate court. She narrates the circumstances surrounding the disappearance of the original court file, the opening of a skeleton file pursuant to court directions, and the subsequent reconstruction process undertaken under the supervision of the trial court.
10. The Respondent further depones that attempts at execution through other lawful means proved unsuccessful, leading to the issuance of a Notice to Show Cause and ultimately warrants of arrest. She contends that the Applicant deliberately failed to attend court despite being aware of the proceedings and that the present application is merely intended to frustrate her enjoyment of the fruits of her judgment.
11. The Applicant filed a Further Affidavit sworn on 17th March 2026 reiterating that his constitutional right to representation was violated when the trial court allegedly declined to hear his advocate. He maintains that he properly invoked the supervisory jurisdiction of this Court.
12. The Applicant also filed Grounds of Opposition to the Preliminary Objection contending that he is not seeking review or appeal but rather intervention under Article 165(6) and (7) of the Constitution.
13. Having considered the applications, affidavits, submissions and authorities placed before the Court, the issues for determination are:
a. Whether the Preliminary Objection is merited;
b. Whether this Court has jurisdiction under Article 165 of the Constitution;
c. Whether the Applicant's application dated 2nd March 2026 is merited; and
d. Whether the Respondent's application dated 10th March 2026 is merited.
14. The law relating to Preliminary Objections is settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Law JA stated that a Preliminary Objection consists of a pure point of law which, if argued successfully, may dispose of the suit. Newbold P further emphasized that a Preliminary Objection cannot be raised where facts remain contested or where judicial discretion is required.
15. The Respondent argues that the Applicant seeks reliefs that can only be granted in an appeal. The Applicant, however, insists that he invokes the supervisory jurisdiction of this Court under Article 165(6) and (7) of the Constitution.
16. Determining whether the present proceedings amount to an appeal disguised as a miscellaneous application necessarily requires consideration of the nature of the Applicant's complaints and the proceedings before the subordinate court. Such determination transcends the scope of a pure point of law.
17. Consequently, the Court finds that the Preliminary Objection does not meet the threshold established in Mukisa Biscuit and is therefore dismissed.
18. The Court now turns to the substantive applications. The Applicant principally challenges the reconstruction of the subordinate court file and the issuance of warrants of arrest.
19. Article 165(6) and (7) of the Constitution grants the High Court supervisory jurisdiction over subordinate courts and empowers it to call for and examine records of subordinate courts to ensure legality, propriety and regularity of proceedings.
20. In Director of Public Prosecutions v Perry Mansukh Kansagara & 8 Others [2020] KEHC 6532 (KLR), the Court observed that supervisory jurisdiction exists to ensure that subordinate courts act within the law and proper procedure. It is not intended to replace appellate or review jurisdiction.
21. Before addressing the merits of the Applicant's grievances, this Court takes judicial notice that the Applicant had previously moved this Court in Mombasa HCCCMISC No. E281 of 2025 arising from substantially the same dispute and touching on the same subordinate court proceedings.
22. The Court has carefully compared the reliefs sought in the present application with those pursued in the earlier proceedings and finds a substantial overlap in both substance and effect. Rather than pursuing the remedies expressly provided by law through review or appeal, the Applicant has repeatedly resorted to miscellaneous proceedings seeking intervention by this Court.
23. Such conduct demonstrates a pattern of multiplicity of proceedings and amounts to an abuse of the court process. The repeated filing of miscellaneous applications founded on substantially similar grievances bears the hallmarks of forum shopping.
24. The Court is further persuaded that the Applicant's conduct amounts to a fishing expedition aimed at obtaining a favourable outcome through collateral proceedings while avoiding the established appellate and review mechanisms provided by law.
25. Courts cannot permit litigants to move from one forum to another in search of favourable orders while re-litigating substantially the same grievances. The orderly administration of justice requires parties to pursue the remedies specifically provided under the law and to respect the principle of finality in litigation.
26. Turning to the issue of reconstruction of the court file, the Court finds no merit in the Applicant's contention that reconstruction could only be undertaken through a formal application involving all parties.
27. Reconstruction of a missing court file is primarily an administrative and registry function governed by established judicial administrative procedures. The Magistrates' and Kadhis' Courts Registry Manual provides the applicable framework for reconstruction of missing files.
28. The procedure proposed by the Applicant finds no support in law, policy or practice. The material placed before this Court demonstrates that the subordinate court issued directions regarding the reconstruction and management of the file and that the process was undertaken under the supervision of the court.
29. No evidence has been placed before this Court demonstrating illegality, impropriety or procedural irregularity in the reconstruction process sufficient to warrant intervention under Article 165(6) and (7) of the Constitution.
30. As regards the warrants of arrest, the Court finds that the Applicant is effectively challenging the merits and propriety of orders issued by the trial court in execution proceedings.
31. Such issues fall within the province of the trial court by way of review or before this Court through a competent appeal. Supervisory jurisdiction cannot be invoked as a substitute for appellate jurisdiction.
32. This Court therefore declines the invitation to interrogate the correctness of the warrants of arrest under the guise of supervisory jurisdiction.
33. Having considered the entire record, the Court finds that the Applicant has failed to establish any basis for intervention under Article 165(6) and (7) of the Constitution.
34. Consequently, the Notice of Motion dated 2nd March 2026 is devoid of merit and is hereby dismissed in its entirety.
35. The interim orders issued herein on 4th March 2026 are hereby vacated and discharged forthwith.
36. The Respondent's Notice of Motion dated 10th March 2026 is merited and is hereby allowed.
37. For the avoidance of doubt, this Court further finds that the institution of the present proceedings, viewed together with Mombasa HCCCMISC No. E281 of 2025, amounts to a multiplicity of proceedings and an abuse of the court process. The Applicant appears intent on challenging the execution process through successive miscellaneous applications rather than pursuing the remedies specifically provided under the law.
38. The Court deprecates such conduct. The filing of repeated applications founded on substantially similar grievances bears the hallmarks of forum shopping and a fishing expedition aimed at obtaining a favourable outcome through collateral proceedings. Courts must guard against such misuse of judicial process and uphold the principle of finality in litigation.
39. Costs follow the event. The Applicant shall bear the costs of the Notice of Motion dated 2nd March 2026 as well as the costs of the Respondent's Notice of Motion dated 10th March 2026.
40. It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 2ND DAY OF JUNE 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the Presence of:
Ms Juma and Mr. P.Magolo for the APPLICANT
.Mr. Kirui and MR. Wangira FOR THE RESPONDENT
BEBORA COURT ASSISTANT
2. The application is premised on the grounds appearing on its face and is supported by the affidavit sworn by the Applicant on 2nd March 2026. The Applicant depones that warrants of arrest were issued against him on 2nd March 2026 despite the presence of his advocate in court. He contends that the Notice to Show Cause dated 5th February 2026 expressly permitted attendance either in person or through an advocate or duly authorized representative.
3. The Applicant further avers that although he is aware of the judgment entered against him, he has not been supplied with copies of the proceedings and judgment despite making a formal request. He also complains that the subordinate court has been operating using a reconstructed skeleton file and contends that the reconstruction process was irregular and undertaken without adherence to proper procedure. He therefore urges this Court to intervene in exercise of its supervisory jurisdiction under Article 165 of the Constitution.
4. The Respondent opposed the application through a Replying Affidavit sworn on 10th March 2026. She depones that she is the decree holder in Mombasa CMCC MCCC No. E1928 of 2021 and maintains that appearance by counsel alone was insufficient to satisfy the Notice to Show Cause issued against the judgment debtor.
5. The Respondent further avers that warrants of arrest constitute a lawful mode of execution under Order 22 of the Civil Procedure Rules and that the Applicant has not demonstrated inability to satisfy the decretal sum of Kshs. 10,143,600. She contends that despite requesting proceedings and judgment over eleven months ago, the Applicant has never filed an appeal.
6. The Respondent disputes the Applicant's allegations regarding reconstruction of the court file and states that reconstruction is primarily an administrative function of the court registry. She characterizes the present application as an appeal disguised as a miscellaneous application and an abuse of the court process.
7. The Respondent also filed a Notice of Preliminary Objection and a Notice of Motion dated 10th March 2026 seeking, among other orders, the setting aside of interim orders granted on 4th March 2026 and the striking out or dismissal of the Applicant's application.
8. The grounds of the Preliminary Objection are that this Court lacks jurisdiction to grant stay of execution in the absence of an appeal; that the Applicant seeks appellate relief without filing an appeal; and that the provisions relied upon, namely Sections 18 and 80 of the Civil Procedure Act, are inapplicable and render the application fatally defective.
9. In support of her application, the Respondent depones that the Applicant has consistently sought to delay the conclusion of the proceedings before the subordinate court. She narrates the circumstances surrounding the disappearance of the original court file, the opening of a skeleton file pursuant to court directions, and the subsequent reconstruction process undertaken under the supervision of the trial court.
10. The Respondent further depones that attempts at execution through other lawful means proved unsuccessful, leading to the issuance of a Notice to Show Cause and ultimately warrants of arrest. She contends that the Applicant deliberately failed to attend court despite being aware of the proceedings and that the present application is merely intended to frustrate her enjoyment of the fruits of her judgment.
11. The Applicant filed a Further Affidavit sworn on 17th March 2026 reiterating that his constitutional right to representation was violated when the trial court allegedly declined to hear his advocate. He maintains that he properly invoked the supervisory jurisdiction of this Court.
12. The Applicant also filed Grounds of Opposition to the Preliminary Objection contending that he is not seeking review or appeal but rather intervention under Article 165(6) and (7) of the Constitution.
13. Having considered the applications, affidavits, submissions and authorities placed before the Court, the issues for determination are:
a. Whether the Preliminary Objection is merited;
b. Whether this Court has jurisdiction under Article 165 of the Constitution;
c. Whether the Applicant's application dated 2nd March 2026 is merited; and
d. Whether the Respondent's application dated 10th March 2026 is merited.
14. The law relating to Preliminary Objections is settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Law JA stated that a Preliminary Objection consists of a pure point of law which, if argued successfully, may dispose of the suit. Newbold P further emphasized that a Preliminary Objection cannot be raised where facts remain contested or where judicial discretion is required.
15. The Respondent argues that the Applicant seeks reliefs that can only be granted in an appeal. The Applicant, however, insists that he invokes the supervisory jurisdiction of this Court under Article 165(6) and (7) of the Constitution.
16. Determining whether the present proceedings amount to an appeal disguised as a miscellaneous application necessarily requires consideration of the nature of the Applicant's complaints and the proceedings before the subordinate court. Such determination transcends the scope of a pure point of law.
17. Consequently, the Court finds that the Preliminary Objection does not meet the threshold established in Mukisa Biscuit and is therefore dismissed.
18. The Court now turns to the substantive applications. The Applicant principally challenges the reconstruction of the subordinate court file and the issuance of warrants of arrest.
19. Article 165(6) and (7) of the Constitution grants the High Court supervisory jurisdiction over subordinate courts and empowers it to call for and examine records of subordinate courts to ensure legality, propriety and regularity of proceedings.
20. In Director of Public Prosecutions v Perry Mansukh Kansagara & 8 Others [2020] KEHC 6532 (KLR), the Court observed that supervisory jurisdiction exists to ensure that subordinate courts act within the law and proper procedure. It is not intended to replace appellate or review jurisdiction.
21. Before addressing the merits of the Applicant's grievances, this Court takes judicial notice that the Applicant had previously moved this Court in Mombasa HCCCMISC No. E281 of 2025 arising from substantially the same dispute and touching on the same subordinate court proceedings.
22. The Court has carefully compared the reliefs sought in the present application with those pursued in the earlier proceedings and finds a substantial overlap in both substance and effect. Rather than pursuing the remedies expressly provided by law through review or appeal, the Applicant has repeatedly resorted to miscellaneous proceedings seeking intervention by this Court.
23. Such conduct demonstrates a pattern of multiplicity of proceedings and amounts to an abuse of the court process. The repeated filing of miscellaneous applications founded on substantially similar grievances bears the hallmarks of forum shopping.
24. The Court is further persuaded that the Applicant's conduct amounts to a fishing expedition aimed at obtaining a favourable outcome through collateral proceedings while avoiding the established appellate and review mechanisms provided by law.
25. Courts cannot permit litigants to move from one forum to another in search of favourable orders while re-litigating substantially the same grievances. The orderly administration of justice requires parties to pursue the remedies specifically provided under the law and to respect the principle of finality in litigation.
26. Turning to the issue of reconstruction of the court file, the Court finds no merit in the Applicant's contention that reconstruction could only be undertaken through a formal application involving all parties.
27. Reconstruction of a missing court file is primarily an administrative and registry function governed by established judicial administrative procedures. The Magistrates' and Kadhis' Courts Registry Manual provides the applicable framework for reconstruction of missing files.
28. The procedure proposed by the Applicant finds no support in law, policy or practice. The material placed before this Court demonstrates that the subordinate court issued directions regarding the reconstruction and management of the file and that the process was undertaken under the supervision of the court.
29. No evidence has been placed before this Court demonstrating illegality, impropriety or procedural irregularity in the reconstruction process sufficient to warrant intervention under Article 165(6) and (7) of the Constitution.
30. As regards the warrants of arrest, the Court finds that the Applicant is effectively challenging the merits and propriety of orders issued by the trial court in execution proceedings.
31. Such issues fall within the province of the trial court by way of review or before this Court through a competent appeal. Supervisory jurisdiction cannot be invoked as a substitute for appellate jurisdiction.
32. This Court therefore declines the invitation to interrogate the correctness of the warrants of arrest under the guise of supervisory jurisdiction.
33. Having considered the entire record, the Court finds that the Applicant has failed to establish any basis for intervention under Article 165(6) and (7) of the Constitution.
34. Consequently, the Notice of Motion dated 2nd March 2026 is devoid of merit and is hereby dismissed in its entirety.
35. The interim orders issued herein on 4th March 2026 are hereby vacated and discharged forthwith.
36. The Respondent's Notice of Motion dated 10th March 2026 is merited and is hereby allowed.
37. For the avoidance of doubt, this Court further finds that the institution of the present proceedings, viewed together with Mombasa HCCCMISC No. E281 of 2025, amounts to a multiplicity of proceedings and an abuse of the court process. The Applicant appears intent on challenging the execution process through successive miscellaneous applications rather than pursuing the remedies specifically provided under the law.
38. The Court deprecates such conduct. The filing of repeated applications founded on substantially similar grievances bears the hallmarks of forum shopping and a fishing expedition aimed at obtaining a favourable outcome through collateral proceedings. Courts must guard against such misuse of judicial process and uphold the principle of finality in litigation.
39. Costs follow the event. The Applicant shall bear the costs of the Notice of Motion dated 2nd March 2026 as well as the costs of the Respondent's Notice of Motion dated 10th March 2026.
40. It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 2ND DAY OF JUNE 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the Presence of:
Ms Juma and Mr. P.Magolo for the APPLICANT
.Mr. Kirui and MR. Wangira FOR THE RESPONDENT
BEBORA COURT ASSISTANT