Introduction
1. For determination is the Applicant’s Amended Notice of Motion 16 April 2026, brought principally under sections 1A, 1B and 3A of the Civil Procedure Act and Order 22 Rules 31, 32 and 34 of the Civil Procedure Rules, in which the Applicant seeks, inter alia, orders that this Court calls for and adopts the judgment and decree issued in Small Claims Court Case No. SCCCOMM/E1766/2022 and thereafter issues a Notice to Show Cause and warrants of arrest against the Respondent for committal to civil jail in execution of the decree.
2. The application is supported by the Supporting Affidavit and Supplementary Affidavit sworn by the Applicant. She deposes that judgment was entered in her favour on 15th July 2022, but attempts to execute through attachment proved unsuccessful.
3. It is further her case that on 3rd September 2025 the Small Claims Court ordered the Respondent to liquidate the decretal amount by monthly instalments of Kshs.30,000 but that the Respondent only paid Kshs.150,000 before defaulting; and that following the decision in Gathaiya v Attorney General & 2 Others; & 176 Interested Parties [2026] KEHC 290 (KLR), the Small Claims Court lacks jurisdiction to issue warrants of arrest, thereby necessitating intervention by this court.
4. The Respondent opposed the application through Grounds of Opposition dated 30 April 2026. His position is that the application is incompetent because no decree has been transferred to the High Court for execution and that, absent such transfer, this court lacks jurisdiction to enforce the decree of another court.
5. The application was canvassed by written submissions. The Applicant filed written submissions dated 1 May 2026, reiterating that following the Gathaiya decision, the High Court is the proper court to issue warrants of arrest in aid of execution of Small Claims Court decrees.
6. The Applicant further submitted that all other modes of execution have been exhausted and relies on Sections 38 and 39 of the Civil Procedure Act and Order 22 Rules 31 and 32 of the Civil Procedure Rules.
Analysis and Determination
7. Having considered the application, the affidavit, the grounds of opposition and the submissions on record, the issue arising for determination is whether the application is competent, and if so, whether the same can be granted by this Court.
8. The Respondent, in his response to the application, raised a preliminary issue touching on the question of this Court’s jurisdiction.
9. It is settled law that jurisdiction is the threshold issue, and as was stated in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1, jurisdiction is everything, and without it a court must down its tools.
10. In the present case, the Applicant asserts jurisdiction and contends that following the decision in Gathaiya v Attorney General & 2 Others; & 176 Interested Parties [2026] KEHC 290 (KLR) which declared unconstitutional Rule 25 of the Small Claims Court Rules to the extent that it imported the provisions of the Civil Procedure Act relating to arrest and committal to civil jail into execution proceedings before the Small Claims Court – it is only this Court, the High Court, that can issue warrants of arrest in execution proceedings emanating from the Small Claims Court.
11. I do not agree with that proposition.
12. The decision in Gathaiya, in the view of this Court, only answered the question of whether the Small Claims Court possesses jurisdiction to order arrest and committal to civil jail under Rule 25 of the Small Claims Court Rules. While it answered that question in the negative, the judgment did not establish a new statutory mechanism for the transfer or execution of Small Claims Court decrees by the High Court. Neither did it hold that every decree issued by the Small Claims Court automatically becomes executable through the High Court.
13. It is settled law that jurisdiction cannot be inferred from perceived necessity. As observed by the Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR, a court's jurisdiction flows from the Constitution or legislation and cannot be expanded by judicial craft or implication.
14. It therefore follows that while this Court undoubtedly possesses supervisory jurisdiction over subordinate courts under Article 165(6) of the Constitution, the exercise of execution jurisdiction must still be founded upon the applicable statutory framework.
15. The Applicant's case in the present case is founded on the proposition that since the Small Claims Court lacks jurisdiction to issue warrants of arrest, the High Court should call for the record, adopt the decree, and proceed with execution.
16. The difficulty with that approach is procedural and jurisdictional. It has not been demonstrated that the decree in SCCCOMM/E1766/2022 has been formally transmitted, transferred or otherwise placed before this Court for execution in the manner contemplated by law. The present application merely requests this Court to adopt the decree for purposes of execution.
17. I agree with the Respondent's contention that, in the absence of a properly transferred decree, this Court cannot assume the role of an executing court.
18. Jurisdiction does not arise merely because execution by arrest may not be available before the court which issued the decree. There must first be compliance with the statutory procedure governing the execution and transfer of decrees.
19. Until the decree is properly transmitted to, or otherwise placed before, this Court in accordance with the law, this Court lacks a proper jurisdictional foundation upon which to issue a Notice to Show Cause or warrants of arrest against the Respondent.
20. Consequently, I find and hold that the application is premature.
21. Accordingly, the Amended Notice of Motion dated 16 April 2026 is hereby struck out.
22. The Applicant shall, however, be at liberty to pursue the appropriate procedure for transfer and execution of the decree issued in Small Claims Court Case No. SCCCOMM/E1766/2022.
23. Given that the Applicant seeks to enforce a valid decree, I direct that each party shall bear its own costs.
24. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 2ND DAY OF JUNE 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
.………………for the Applicant/DH
……………for the Respondent/JD
1. For determination is the Applicant’s Amended Notice of Motion 16 April 2026, brought principally under sections 1A, 1B and 3A of the Civil Procedure Act and Order 22 Rules 31, 32 and 34 of the Civil Procedure Rules, in which the Applicant seeks, inter alia, orders that this Court calls for and adopts the judgment and decree issued in Small Claims Court Case No. SCCCOMM/E1766/2022 and thereafter issues a Notice to Show Cause and warrants of arrest against the Respondent for committal to civil jail in execution of the decree.
2. The application is supported by the Supporting Affidavit and Supplementary Affidavit sworn by the Applicant. She deposes that judgment was entered in her favour on 15th July 2022, but attempts to execute through attachment proved unsuccessful.
3. It is further her case that on 3rd September 2025 the Small Claims Court ordered the Respondent to liquidate the decretal amount by monthly instalments of Kshs.30,000 but that the Respondent only paid Kshs.150,000 before defaulting; and that following the decision in Gathaiya v Attorney General & 2 Others; & 176 Interested Parties [2026] KEHC 290 (KLR), the Small Claims Court lacks jurisdiction to issue warrants of arrest, thereby necessitating intervention by this court.
4. The Respondent opposed the application through Grounds of Opposition dated 30 April 2026. His position is that the application is incompetent because no decree has been transferred to the High Court for execution and that, absent such transfer, this court lacks jurisdiction to enforce the decree of another court.
5. The application was canvassed by written submissions. The Applicant filed written submissions dated 1 May 2026, reiterating that following the Gathaiya decision, the High Court is the proper court to issue warrants of arrest in aid of execution of Small Claims Court decrees.
6. The Applicant further submitted that all other modes of execution have been exhausted and relies on Sections 38 and 39 of the Civil Procedure Act and Order 22 Rules 31 and 32 of the Civil Procedure Rules.
Analysis and Determination
7. Having considered the application, the affidavit, the grounds of opposition and the submissions on record, the issue arising for determination is whether the application is competent, and if so, whether the same can be granted by this Court.
8. The Respondent, in his response to the application, raised a preliminary issue touching on the question of this Court’s jurisdiction.
9. It is settled law that jurisdiction is the threshold issue, and as was stated in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1, jurisdiction is everything, and without it a court must down its tools.
10. In the present case, the Applicant asserts jurisdiction and contends that following the decision in Gathaiya v Attorney General & 2 Others; & 176 Interested Parties [2026] KEHC 290 (KLR) which declared unconstitutional Rule 25 of the Small Claims Court Rules to the extent that it imported the provisions of the Civil Procedure Act relating to arrest and committal to civil jail into execution proceedings before the Small Claims Court – it is only this Court, the High Court, that can issue warrants of arrest in execution proceedings emanating from the Small Claims Court.
11. I do not agree with that proposition.
12. The decision in Gathaiya, in the view of this Court, only answered the question of whether the Small Claims Court possesses jurisdiction to order arrest and committal to civil jail under Rule 25 of the Small Claims Court Rules. While it answered that question in the negative, the judgment did not establish a new statutory mechanism for the transfer or execution of Small Claims Court decrees by the High Court. Neither did it hold that every decree issued by the Small Claims Court automatically becomes executable through the High Court.
13. It is settled law that jurisdiction cannot be inferred from perceived necessity. As observed by the Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR, a court's jurisdiction flows from the Constitution or legislation and cannot be expanded by judicial craft or implication.
14. It therefore follows that while this Court undoubtedly possesses supervisory jurisdiction over subordinate courts under Article 165(6) of the Constitution, the exercise of execution jurisdiction must still be founded upon the applicable statutory framework.
15. The Applicant's case in the present case is founded on the proposition that since the Small Claims Court lacks jurisdiction to issue warrants of arrest, the High Court should call for the record, adopt the decree, and proceed with execution.
16. The difficulty with that approach is procedural and jurisdictional. It has not been demonstrated that the decree in SCCCOMM/E1766/2022 has been formally transmitted, transferred or otherwise placed before this Court for execution in the manner contemplated by law. The present application merely requests this Court to adopt the decree for purposes of execution.
17. I agree with the Respondent's contention that, in the absence of a properly transferred decree, this Court cannot assume the role of an executing court.
18. Jurisdiction does not arise merely because execution by arrest may not be available before the court which issued the decree. There must first be compliance with the statutory procedure governing the execution and transfer of decrees.
19. Until the decree is properly transmitted to, or otherwise placed before, this Court in accordance with the law, this Court lacks a proper jurisdictional foundation upon which to issue a Notice to Show Cause or warrants of arrest against the Respondent.
20. Consequently, I find and hold that the application is premature.
21. Accordingly, the Amended Notice of Motion dated 16 April 2026 is hereby struck out.
22. The Applicant shall, however, be at liberty to pursue the appropriate procedure for transfer and execution of the decree issued in Small Claims Court Case No. SCCCOMM/E1766/2022.
23. Given that the Applicant seeks to enforce a valid decree, I direct that each party shall bear its own costs.
24. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 2ND DAY OF JUNE 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
.………………for the Applicant/DH
……………for the Respondent/JD