1. This court is asked to determine the applicant’s application dated 14 th March 2026 which is supported by an affidavit sworn on 11 th March 2026. The application is presented under Rule 2, 3(2), (3), (4), (5), 19, 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
2. The application seeks for orders that: -
1. Spent
2. Pending the inter-party hearing and determination of the petition an interim conservatory order be and is hereby issued staying the execution of the trial court’s order in Milimani Civil Case No. 4586 of 2016, issued on the 6 th November 2023 by the 1 st respondent.
3. A declaration that the orders of committal to civil jail issued against the petitioner in Milimani Civil Case No. 4586 of 2016, on 6 th November 2023 by the 1 st respondent are unconstitutional and violate his fundamental rights and freedoms as enshrined in the Constitution of Kenya.
4. A declaration that the trial court in issuing the orders of committal to civil jail contravened the constitutional rights of the petitioner.
5. An order setting aside/staying the orders of committal to civil jail issued against the petitioner by the 1 st respondent, pending hearing and determination of this petition.
6. Any other appropriate and just relief that this Honourable Court may deem fit to grant.
3. The application is predicated upon the grounds that, by dint of article 2(6) of the Constitution, article 11 of the International Covenant on Civil and Political Rights (ICCPR) form part of Kenyan Law. This covenant makes provisions for the promotion and protection of human rights and recognizes that individuals are entitled to basic freedoms to seek ways and means of bettering themselves.
4. The execution by way of arrest and committal to civil jail must be done as a last resort and liberty cannot be curtailed lightly, especially in commercial and civil disputes. Further, Section 40 of the Civil Procedure Act and order 22 Rule 7 of the Civil Procedure Rules are inconsistent with the ICCPR and unconstitutional, as they allow arrest without sufficient notice or opportunity to pay.
5. Committal and imprisonment violate articles 28, 29, 39 and 50(1) of the Constitution. In addition, the course of committal to civil jail should only be resorted to in appropriate cases and the guidelines for determining whether a particular case is appropriate for such court must necessarily depend on whether the conditions stipulated under section 38 of the Act have been fulfilled. The 1st respondent has not satisfied these conditions.
6. According to the applicant, Order 21 Rules 18 and 32 impose standards surpassing constitutional thresholds for liberty deprivation. This is because the deprivation of a person’s liberty is criminal proceedings and proof beyond reasonable doubt is required that the debtor but has refused to pay.
7. It is therefore urged that unless the application for stay of execution and/or setting aside the orders of the trial court on 6 th November 2023 are granted, the petition will suffer irreparable harm. Conversely, no party will be prejudiced if the application is granted and the balance of convenience tilts in his favour.
8. In the supporting affidavit, the applicant states that on 31 st March 2015 he and the 3 rd respondent executed a Memorandum of Understanding (MOU) valid for three months, expressly non-binding. The collaboration failed due to misrepresentation, the 3 rd respondent having falsely claimed National Construction Authority (NCA-1) certification, while lacking any construction track record in Kenya.
9. The applicant deposes that, at all material times, he served as a director of the interested party and that although the court ordered all directors to deposit their passports, the other directors did not comply yet were allowed to remain outside the court’s jurisdiction. He was therefore unfairly singled out to bear the entire burden of these proceedings, raising serious concerns regarding equality before the law and procedural fairness.
10. The applicant claims that at the time the suit giving rise to the decree was filed, he was in Somalia, unaware of the proceedings until his return in 2017. Upon return, he instructed the firm of Ahmednasir Abdullahi & Co. Advocates, who entered appearance on 12th August 2017 but failed to file a defence, resulting in a default judgment.
11. The applicant deposes that he faced coercive enforcement measures including arrest, detention and threats of committal to civil jail and on 11 th June 2021 was arrested and detained at Central Police Station pursuant to warrants arising from Milimani Civil Case No. 4586 of 2016 before being released on 13 th June 2022 after pressured consent. On 14 th June 2022, he was detained at the Anti-Terrorism Police Unit (ATPU) for 118 days despite the existence of a High Court Order directing his release, and he was released on 19 th August 2022.
12. The applicant deposes that he suffers from type 2 diabetes mellitus and severe hypertension, requiring continuous medical supervision. Further that he vied for the presidency in Somalia and was detained during the 2022 election cycle despite court orders permitting participation. On 1 st and 2 nd November 2025, he was again arrested and detained at Kitengela Police Station and released on 3 rd November 2025 after being compelled under duress to consent to payment of the decretal sum under threat of imprisonment. The trial court subsequently ordered a bond of Kshs. 10 million together with a surety of a similar amount. His nephew stood as surety and deposited his Kenyan passport with the Court, which remains held to date.
13. The applicant states that he underwent total hip replacement surgery and remains under strict medical supervision; committal to civil jail would pose a threat to his constitutional rights to life and human dignity under articles 26 and 28 of the Constitution. He claims that he has never refused to satisfy the decretal sum, has made partial payment of Kshs. 200,000 on 3 rd February 2026 and proposed settlement arrangements in good faith.
14. The applicant deposes that on 5 th March 2026 he met Premier Bank officials who denied any intention to sell the property for a loan allegedly valued at Kshs. 21million, confirming instead that it is valued at over Kshs. 1 billion. Further, the circulation of such information has undermined investor confidence, the financial trajectory of their development project and demonstrated bad faith.
15. The applicant states that they are finalising international financing arrangements with Global Future Group LLC (USA) for development of the property and imprisonment would derail the project, frustrate settlement of the decree, development initiative and violate articles 26, 28, 29, 48 and 50 of the Constitution.
16. The applicant states that Kenyan jurisprudence, including Braeburn Ltd v Gachoka[2007] 2 EA 67, Wanjiku & another v Attorney General & another; Muna & another (Interested Parties) [2012] KEHC 5410 (KLR) and Diamond Trust Bank Kenya Limited (formerly Diamond Trust of Kenya Limited) Vs Jaswinder Singh Enterprises [1999] KECA 202 (KLR) , confirms that committal to civil jail is a remedy of last resort. The courts have further held that imprisonment is permissible only where the debtor deliberately refuses to pay, which is not the case herein.
2 ND RESPONDENTS’ CASE
17. The 2 nd respondent opposed the application through grounds of opposition dated 17 th July 2024. It is contended that the petition falls short of the threshold set out in Mumo Matemo v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR and Anarita Karimi Njeru v Republic [1979] eKLR. Further reliance is placed on the decision in Raila Odinga & 5 others v Independent Electoral and Boundaries Commission and 3 others [2013] eKLR, Kiambu County Tenants Welfare Association v Attorney General & another [2017] eKLR.
18. Reliance is placed on Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR for the contention that the applicant has not adequately exhausted other remedies provided by law before lodging his case at this court. Further, the Office of the Attorney General and the Department of Justice have no power to commit a judgment debtor to civil jail.
19. It is contended that the prisons department is bound by law to obey lawful court orders for detention of any person, as such the doctrine of separation of powers applies. It is further contended that the petition and application do not raise constitutional issues for deliberation as envisaged under the cited articles and as such should be dismissed.
SUMMARY OF 3 RD RESPONDENT’S CASE
20. The 3 rd Respondent opposed the application through replying affidavit sworn by Liu Weijun on 24 th April 2024. It is stated that the applicant was personally sued in MCCC 4586 of 2016, entered appearance but filed no defence, leading to interlocutory judgment. He never sought to set aside the judgment but instead made promises to settle the decretal sum. He further appointed the firm of Konan Associates, who gave a professional undertaking to settle the decretal sum, which was not honoured.
21. It is deposed that this prompted the 2 nd respondent’s advocates to appoint an auctioneer to investigate any movable or immovable property that may be attached to settle the judgment debt. Upon conclusion of the investigations, it was established that the applicant had no movable assets to liquidate to settle the decretal sum.
22. Consequently, the 2 nd respondent caused a notice to show cause (NTSC) against the applicant and, despite proper service, he never appeared in court. The Court issued a warrant of arrest, leading to his arrest and presentation to court, where he was again granted an opportunity to be heard on the said debt. After deliberations with his counsel, the court adopted a consent order dated 13 th June 2022 on 15 th June 2022.
23. In the consent it was agreed that the judgment debtor (Applicant herein) pays Kshs. 2,500,000 every month from the end of June 2022; the subsequent payment be made on or before the 30 th day of each month; the entire decretal sum and interest totalling to Kshs. 18,122,842 be cleared within 120 days from 13 th June 2022; a restriction order be issued barring the selling of property known as LR 7149/23 until payment of the decretal sum, costs and interest, and in default, execution be issued by way of warrant of arrest. The warrant of arrest dated 11 th May 2022 were lifted.
24. The 2 nd respondent is of the opinion that the petition therefore seeks to avoid lawful civil liability whereby he has completely admitted to the debt, either directly or by conduct. It is pleaded that all through, the applicant never sought to vacate the interlocutory judgment, but accepted the outcome and made various undertakings of his willingness to abide by the judgment, until some time in 2023 when he sought to set aside the interlocutory judgment.
25. The 2 nd respondent states that in June 2017, the applicant issued it with various cheques as part of the settlement of the decretal sum. However, upon presentation of the cheques for clearance, they were dishonoured by the bank. Further that he has failed to exhaust all available legal remedies before resorting to filing this petition.
26. It is contended that the applicant has filed an application for setting aside the default judgment issued in MCCOMCC 4586 of 2016 which forms the basis of the committal orders being contested. Further that the 2 nd respondent has over the years tried to have the applicant settle the decretal sum in vain.
27. On 21 st November 2018, the respondent issued a statutory demand seeking to compel the applicant to pay Kshs. 12,633, 175 failure which would result in the filing of a bankruptcy notice. On 10 th December 2018 its advocates wrote to the applicant’s counsel highlighting the failure to honour the Professional Undertaking and the applicant’s counsel responded on 14 th January 2019, denying any such claims against them.
28. On 8 th February 2019, the directors of the interested party were issued with a NTSC why execution should not be granted after the 2 nd respondent filed the application dated 25 th January 2019. On 15 th March 2019, another NTSC was issued to the applicant to explain why he should not be personally arrested and committed to civil jail for Kshs. 14,198,354 but the applicant could not be traced. On 18 th February 2020, through counsel the 2 nd respondent filed an application for registration of a caution on the property LR No. 7149/23 as delineated on Land Survey Plan No. 111609 belonging to the interested party upon which it was determined that a charge had been put over the property by First Community Bank.
29. On 5 th January 2021, the 2 nd respondent filed a garnishee application for orders to investigate and seek the settlement of the decretal sum from the monies held at the applicant’s bank account at First Community Bank; the same was dismissed on the basis that the account was in arrears. On 7 th January 2021, Hon. G.A. Mmosi (SPM) issued a garnishee order decree nisi, and an inter-parties hearing was set for 20 th January 2021.
30. It is therefore pleaded that it is only after such concerted efforts had failed that the 2nd respondent sought arrest warrants to be issued against the applicant on 11 th May 2022. On 5 th July 2022, a letter was sent to the applicant demanding payment of the said instalment of Kshs. 2,500,000 within seven days which were never honoured. On 2 nd October 2023, Hon. Wendy K. Michieni ordered the directors of the interested party to not leave the jurisdiction of the court, to appear personally in court to be orally examined on whether the applicant or interested party herein had any means of satisfying the decree and to produce their bank statements.
31. It is stated that on 14 th September 2023 and 14 th November 2023, the applicant and interested party filed an application to set aside the judgment of MCCOMCC 4586 of 2016 dated 20 th September 2016 and decree issued on 17 th January 2017. On 19 th January 2023, the Court found the applicant’s application dated 19th July 2022, seeking to set aside the consent, bereft of merit and dismissed it. On 6 th November 2023, the 2 nd respondent filed a NTSC why execution should not be issued under Order 22 Rule 18 Civil Procedure (revised) Rules 2010 against the interested party directors. Consequently, the directors were to appear before the court on 15 th November 2023.
32. The 2 nd respondent accuses the applicant of disregarding binding agreements to settle the decretal sum, introducing new facts not raised in the main suit in MCCOMCC 4586 of 2016, and attempting to relitigate matters already determined. It is asserted that the interlocutory judgment and subsequent committal proceedings followed due process.
33. It is urged that the applicant’s claims of facing harassment, arrests and detention to deprive him of property are primarily due to his alleged criminal conduct which has no bearing on the matter, outside the purviews of prayers sought in the petition and is not a defence to his settling of the decretal sum. It is further urged that the allegations of fraud, harassment and coercion are unsupported by evidence.
34. The 2 nd respondent contends that the courts have conclusively held that committal to civil jail for debt is constitutional when due process is observed. The committal to civil jail sought against the applicant is due to his incessant misrepresentation as to the settlement of the decretal sum and his absconding nature that made the execution process impossible through other means.
35. It is pleaded that the applicant’s health and age claims are unverified and do not absolve him of the obligation to satisfy the decree. Further the applicant has not annexed nor filed an affidavit of means to show that he is able or would be able to satisfy the decretal amount. Further that by the applicant failing to pay the sum of Kshs. 10,600,000 plus interests, it violates the 2 nd respondent’s property rights under article 40 (2) of the Constitution. The applicant has also exhibited himself as a person of questionable character and untrustworthy with no known physical abode and executable assets to frustrate the execution of the decree issued.
36. It is contended that the present petition is amounts forum shopping. He is relitigating issues of committal to civil jail while canvassing the same in MCCOMCC 4586 of 2016 where he has filed an application to set aside the judgment.
SUMMARY OF THE APPLICANT'S SUBMISSIONS
37. The applicant’s submissions are dated 18 th March 2026. Reference is made to the decisions in Invesco Assurance Co. Ltd v MW (Minor suing thro’ next friend and mother (HW) [2016] eKLR ; Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR and Judicial Service Commission v Speaker of the National Assembly & another [2013] eKLR on the nature of the conservatory orders.
38. Further reliance is placed on the decisions in Muslim for Human Rights (Milimani) & 2 others v Attorney General & 2 others [2011] eKLR ; Center for Rights Education and Awareness (CREAW) & 7 others v Attorney General [2011] eKLR ; Platinum Distillers Limited v Kenya Revenue Authority [2019] eKLR and Kenya Association of Manufacturers & 2 others v Cabinet Secretary Ministry of Environment and Natural Resources & 3 others [2017] eKLR that vouch for the cautionary approach when granting conservatory orders.
39. The applicant relies on the decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others (supra); Board of Management of Uhuru Secondary School v City Cunty Director of Education & 2 others [2015] eKLR and Wilson Kabeira Nkunja v The Magistrate and Judges Vetting Board and Others [2016] eKLR on the threshold for conservatory orders.
40. On a prima facie case, reliance is placed on the decisions in Mrao v First American Bank of Kenya limited & 2 others [2003] KLR 125 ; David Ndii & others v Attorney General & others [2021] eKLR; Mirugi Kariuki v Attorney General [1992] KLR 8 among others for the contention that in determining whether a matter disclosed a prima facie case, a court must look at the case as a whole. It must weigh the pleadings, the factual basis, the respective parties’ positions, the remedies sought and the law. It must also be guided by articles 22(1) and 258 of the Constitution. He urges that his application meets the principles laid out in Board of Management of Uhuru Secondary School v City County Director of Education & 2 others (supra).
41. The applicant submits that imprisonment because of a civil debt will only amount to abuse and inhumane treatment negating the need for dignity and respect envisaged in the Constitution. Further reliance is placed on articles 3 and 5 of the Universal Declaration of Human Rights (UDHR), article 11 of the International Covenant on Civil and Political Rights (ICCPR) and the decision in Re Zipporah Wambui Mathara Bankruptcy Cause No. 19 of 2010 eKLR that committal to civil jail is a punishment to those who refuse to pay civil debts but not for those who are genuinely unable to pay; it is also unconstitutional.
42. The applicant further relies on article 28 and 29 of the Constitution for the argument that he is an older member of the society with no source of income to pay the civil debt or obey the decree. His committal to civil jail and detention therefore will serve no purpose other than to make mockery of his rights by way of humiliation and embarrassment. Reliance is placed on the decisions in Solomon Muriithi v Jared Mburu [2017] eKLR ; Roans Lauda Moi v Philip Kipchirchir Moi Divorce Case No 154 of 2008; Chimora v Angina Furnishers (Private) Ltd [1997] (Supreme Court of Zimbabwe) and First National Bank v Julia Moseneke and Bank Garborone v Thabang Mosiny (Consolidated). The court is further urged to consider the provisions of article 57 (c) of the Constitution.
SUMMARY OF THE 1 ST RESPONDENTS’ SUBMISSIONS
43. In its submissions dated 17 th July 2024, the 1 st respondent submits the Petition fails the Precision test as pronounced in Anarita Karimi Njeru v Republic [1979] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance and 5 others [2013] eKLR for the argument that it is not enough to list the articles of the Constitution that were allegedly violated and not give specific facts making up the violations. The applicant has not demonstrated how the proceedings before the Magistrates Court, actions of the security agents for arrest and detention were in breach of any law.
44. It is further submitted that the applicant has failed to discharge the evidentiary burden and reference made to the decision in Abuya Abuya v Independent Electoral and Boundaries Commission & Another [2014] eKLR; Constitutional Petition No. 128 of 2006, LT Col. Peter Ngari Kagume & Others v Attorney General and sections 107 and 109 of the Evidence Act Cap 80 stressing that it is incumbent upon the applicant to prove on a balance of probabilities that the allegation he has brought before court is true, this has not been done.
45. In addition the respondent submits that the petition offends the principle of constitutional avoidance; the applicant ought to have filed an appeal rather than a constitutional petition. Reliance is placed on the decisions in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (supra) and Peter Ochara Anam & 3 others v Constituencies Development Fund Board & 4 others [2011] eKLR. Further reliance is placed on the decisions in Kenya Human Rights Commission & another v Attorney General & 6 others [2019] eKLR and Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR) for the submission that the applicant is not entitled to costs.
SUMMARY OF THE 2 ND RESPONDENT’S SUBMISSIONS
46. In its submissions dated 10 th April 2026, the 2 nd respondent cites section 6 of the Civil Procedure Act, Cap 21 Laws of Kenya and the decision in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] KESC 54 (KLR) for the contention that the petition offends the doctrine of sub judice because it seeks in substance, identical reliefs, a stay of execution of the same orders of the trial court as sought in a Notice of Motion dated 20 th February 2026.
47. The 2 nd respondent also relies on section 7 of the Civil Procedure Act and the decision in Henderson v Henderson [1843] 3 Hare 100 for the contention that the applicant had multiple opportunities since the judgment of 2016 and the decree of 2017 to challenge the enforcement mechanisms of the trial court on constitutional grounds but chose not to despite being represented by counsel. He therefore cannot now, eight years after the decree, invoke the Constitution as a shield against legitimate enforcement.
48. It is submitted that the binding Consent Order of 13 th June 2022 further estops him. That to the extent that the trial court has already considered and declined to grant the ex parte relief sought by the applicant on earlier applications, the doctrine of issue estoppel operates to bar him re-agitating those same issues before a superior court. Reliance is placed on the decision in Pancras T Swai v Kenya Breweries Ltd [2014] eKLR where the court cited with approval the case of Mburu Kinyua –Vs- Gachini Tuti [1978] KLR 69 at 81, that res judicata did not only apply to suits, but also to applications.
49. Reliance is placed on Uhuru Highway Development Limited v Central Bank of Kenya & Others [1996] eKLR and Muchanga Investments Limited v. Safaris Unlimited (Africa) Limited & 2 Others [2009] eKLR that the conduct of the applicant amounts to forum shopping. He filed an application before the trial court the Application dated 20 th September 2023 seeking a stay of execution of the decree dated 17 th January 2017, which was dismissed with costs. Filed the Notice of Motion dated 14 th November 2023 seeking, inter alia, stay of the orders of 6 th November 2023, unconditional leave to defend, and ancillary reliefs, which was dismissed with costs by Hon. Wendy K.Micheni in a Ruling delivered on 20 th September 2024 after being heard and determined on their merits.
50. The applicant further filed a Notice of Motion dated 20 th February 2026 in the Magistrate's Court seeking to set aside a Notice to Show Cause (NTSC) and to stay committal proceedings that flow directly from a Consent Order voluntarily entered into by the plaintiff himself on 17 th November 2025, which is yet to be heard and decided. Dissatisfied with the pace of those proceedings (or apprehensive of their failure), he has now filed the present constitutional petition seeking the same substantive reliefs.
51. Citing the case of Communications Commission of Kenya & 5 Others v. Royal Media Services Limited & 5 Others (supra ), it is argued that the applicant's grievance does not raise a constitutional question; it is a commercial dispute in which the applicant is the debtor in default. It is further argued that in any event, the orders of the trial court are constitutionally valid and that the applicant's challenge to the constitutionality of sections 38(D) and 40 of the Civil Procedure Act and Order 22 Rule 7(1) of the Civil Procedure Rules is misconceived. This is because it is settled law that the purpose of committal to civil jail is not punitive but coercive.; aimed at compelling compliance with a court order.
52. It is submitted that article 11 of the ICCPR and the decisions cited by the applicant such as In Re Ziporah Wambui Mathara (supra) is inapplicable in the circumstances of the case. It is further urged that he has not come to court with clean hands as such the application should be dismissed with costs.
ANALYSIS AND DETERMINATION
53. I proceed to determine the application by deciding on the following issues
1. Whether the application offends the doctrine of constitutional avoidance?
2. Whether the applicant has met the threshold for conservatory orders?
3. Arising from (1) and (2) above what are the consequential orders?
Whether the application offends the doctrine of constitutional avoidance
54. Constitutional avoidance, when raised at the outset, operates as a jurisdiction screening device: it asks whether the Court is properly seized of the dispute before it may touch the merits. In Jovet ( Kenya) Limited v Bavaria N. V Petition No. E039 of 2024 , the Supreme Court reiterated that the court sitting as a constitutional court must from the outset inquire whether the Constitution has truly been engaged and pronounced as follows;
[54] This Court has previously adopted the principle of constitutional avoidance in the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others at paragraphs 256- 258 when it found that a copyright infringement claim would be best canvassed in a different forum although it was couched as a constitutional issue. The Court in doing so, relied on the South African decision in S v Mhlungu, 1995 (3) SA 867 (CC) where the Constitutional Court (Kentridge AJ), articulated the principle of avoidance in his minority judgment as follows [at paragraph 59]:
I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.
55. In Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR) , the Court underscored that jurisdiction is foundational when it authoritatively stated
A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation
56. It is thus well settled by judicial precedent that where an alternative statutory or regulatory pathway exists, constitutional recourse is not simply premature; it is outside the Court’s authority. In this sense, avoidance raised preliminarily can dispose of both an interlocutory application and the petition itself in limine , because it interrogates whether the Court has been invited into a dispute that the constitutional architecture assigns elsewhere.
57. In Lugo v Director of Public Prosecutions [2022] KEHC 10574 (KLR) the Court observed as follows:
Courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a court will usually decline to determine whether there has been, in addition, a breach of the Declaration of rights.
58. The Court cited with approval the passage in I Currie &
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2. The application seeks for orders that: -
1. Spent
2. Pending the inter-party hearing and determination of the petition an interim conservatory order be and is hereby issued staying the execution of the trial court’s order in Milimani Civil Case No. 4586 of 2016, issued on the 6 th November 2023 by the 1 st respondent.
3. A declaration that the orders of committal to civil jail issued against the petitioner in Milimani Civil Case No. 4586 of 2016, on 6 th November 2023 by the 1 st respondent are unconstitutional and violate his fundamental rights and freedoms as enshrined in the Constitution of Kenya.
4. A declaration that the trial court in issuing the orders of committal to civil jail contravened the constitutional rights of the petitioner.
5. An order setting aside/staying the orders of committal to civil jail issued against the petitioner by the 1 st respondent, pending hearing and determination of this petition.
6. Any other appropriate and just relief that this Honourable Court may deem fit to grant.
3. The application is predicated upon the grounds that, by dint of article 2(6) of the Constitution, article 11 of the International Covenant on Civil and Political Rights (ICCPR) form part of Kenyan Law. This covenant makes provisions for the promotion and protection of human rights and recognizes that individuals are entitled to basic freedoms to seek ways and means of bettering themselves.
4. The execution by way of arrest and committal to civil jail must be done as a last resort and liberty cannot be curtailed lightly, especially in commercial and civil disputes. Further, Section 40 of the Civil Procedure Act and order 22 Rule 7 of the Civil Procedure Rules are inconsistent with the ICCPR and unconstitutional, as they allow arrest without sufficient notice or opportunity to pay.
5. Committal and imprisonment violate articles 28, 29, 39 and 50(1) of the Constitution. In addition, the course of committal to civil jail should only be resorted to in appropriate cases and the guidelines for determining whether a particular case is appropriate for such court must necessarily depend on whether the conditions stipulated under section 38 of the Act have been fulfilled. The 1st respondent has not satisfied these conditions.
6. According to the applicant, Order 21 Rules 18 and 32 impose standards surpassing constitutional thresholds for liberty deprivation. This is because the deprivation of a person’s liberty is criminal proceedings and proof beyond reasonable doubt is required that the debtor but has refused to pay.
7. It is therefore urged that unless the application for stay of execution and/or setting aside the orders of the trial court on 6 th November 2023 are granted, the petition will suffer irreparable harm. Conversely, no party will be prejudiced if the application is granted and the balance of convenience tilts in his favour.
8. In the supporting affidavit, the applicant states that on 31 st March 2015 he and the 3 rd respondent executed a Memorandum of Understanding (MOU) valid for three months, expressly non-binding. The collaboration failed due to misrepresentation, the 3 rd respondent having falsely claimed National Construction Authority (NCA-1) certification, while lacking any construction track record in Kenya.
9. The applicant deposes that, at all material times, he served as a director of the interested party and that although the court ordered all directors to deposit their passports, the other directors did not comply yet were allowed to remain outside the court’s jurisdiction. He was therefore unfairly singled out to bear the entire burden of these proceedings, raising serious concerns regarding equality before the law and procedural fairness.
10. The applicant claims that at the time the suit giving rise to the decree was filed, he was in Somalia, unaware of the proceedings until his return in 2017. Upon return, he instructed the firm of Ahmednasir Abdullahi & Co. Advocates, who entered appearance on 12th August 2017 but failed to file a defence, resulting in a default judgment.
11. The applicant deposes that he faced coercive enforcement measures including arrest, detention and threats of committal to civil jail and on 11 th June 2021 was arrested and detained at Central Police Station pursuant to warrants arising from Milimani Civil Case No. 4586 of 2016 before being released on 13 th June 2022 after pressured consent. On 14 th June 2022, he was detained at the Anti-Terrorism Police Unit (ATPU) for 118 days despite the existence of a High Court Order directing his release, and he was released on 19 th August 2022.
12. The applicant deposes that he suffers from type 2 diabetes mellitus and severe hypertension, requiring continuous medical supervision. Further that he vied for the presidency in Somalia and was detained during the 2022 election cycle despite court orders permitting participation. On 1 st and 2 nd November 2025, he was again arrested and detained at Kitengela Police Station and released on 3 rd November 2025 after being compelled under duress to consent to payment of the decretal sum under threat of imprisonment. The trial court subsequently ordered a bond of Kshs. 10 million together with a surety of a similar amount. His nephew stood as surety and deposited his Kenyan passport with the Court, which remains held to date.
13. The applicant states that he underwent total hip replacement surgery and remains under strict medical supervision; committal to civil jail would pose a threat to his constitutional rights to life and human dignity under articles 26 and 28 of the Constitution. He claims that he has never refused to satisfy the decretal sum, has made partial payment of Kshs. 200,000 on 3 rd February 2026 and proposed settlement arrangements in good faith.
14. The applicant deposes that on 5 th March 2026 he met Premier Bank officials who denied any intention to sell the property for a loan allegedly valued at Kshs. 21million, confirming instead that it is valued at over Kshs. 1 billion. Further, the circulation of such information has undermined investor confidence, the financial trajectory of their development project and demonstrated bad faith.
15. The applicant states that they are finalising international financing arrangements with Global Future Group LLC (USA) for development of the property and imprisonment would derail the project, frustrate settlement of the decree, development initiative and violate articles 26, 28, 29, 48 and 50 of the Constitution.
16. The applicant states that Kenyan jurisprudence, including Braeburn Ltd v Gachoka[2007] 2 EA 67, Wanjiku & another v Attorney General & another; Muna & another (Interested Parties) [2012] KEHC 5410 (KLR) and Diamond Trust Bank Kenya Limited (formerly Diamond Trust of Kenya Limited) Vs Jaswinder Singh Enterprises [1999] KECA 202 (KLR) , confirms that committal to civil jail is a remedy of last resort. The courts have further held that imprisonment is permissible only where the debtor deliberately refuses to pay, which is not the case herein.
2 ND RESPONDENTS’ CASE
17. The 2 nd respondent opposed the application through grounds of opposition dated 17 th July 2024. It is contended that the petition falls short of the threshold set out in Mumo Matemo v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR and Anarita Karimi Njeru v Republic [1979] eKLR. Further reliance is placed on the decision in Raila Odinga & 5 others v Independent Electoral and Boundaries Commission and 3 others [2013] eKLR, Kiambu County Tenants Welfare Association v Attorney General & another [2017] eKLR.
18. Reliance is placed on Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR for the contention that the applicant has not adequately exhausted other remedies provided by law before lodging his case at this court. Further, the Office of the Attorney General and the Department of Justice have no power to commit a judgment debtor to civil jail.
19. It is contended that the prisons department is bound by law to obey lawful court orders for detention of any person, as such the doctrine of separation of powers applies. It is further contended that the petition and application do not raise constitutional issues for deliberation as envisaged under the cited articles and as such should be dismissed.
SUMMARY OF 3 RD RESPONDENT’S CASE
20. The 3 rd Respondent opposed the application through replying affidavit sworn by Liu Weijun on 24 th April 2024. It is stated that the applicant was personally sued in MCCC 4586 of 2016, entered appearance but filed no defence, leading to interlocutory judgment. He never sought to set aside the judgment but instead made promises to settle the decretal sum. He further appointed the firm of Konan Associates, who gave a professional undertaking to settle the decretal sum, which was not honoured.
21. It is deposed that this prompted the 2 nd respondent’s advocates to appoint an auctioneer to investigate any movable or immovable property that may be attached to settle the judgment debt. Upon conclusion of the investigations, it was established that the applicant had no movable assets to liquidate to settle the decretal sum.
22. Consequently, the 2 nd respondent caused a notice to show cause (NTSC) against the applicant and, despite proper service, he never appeared in court. The Court issued a warrant of arrest, leading to his arrest and presentation to court, where he was again granted an opportunity to be heard on the said debt. After deliberations with his counsel, the court adopted a consent order dated 13 th June 2022 on 15 th June 2022.
23. In the consent it was agreed that the judgment debtor (Applicant herein) pays Kshs. 2,500,000 every month from the end of June 2022; the subsequent payment be made on or before the 30 th day of each month; the entire decretal sum and interest totalling to Kshs. 18,122,842 be cleared within 120 days from 13 th June 2022; a restriction order be issued barring the selling of property known as LR 7149/23 until payment of the decretal sum, costs and interest, and in default, execution be issued by way of warrant of arrest. The warrant of arrest dated 11 th May 2022 were lifted.
24. The 2 nd respondent is of the opinion that the petition therefore seeks to avoid lawful civil liability whereby he has completely admitted to the debt, either directly or by conduct. It is pleaded that all through, the applicant never sought to vacate the interlocutory judgment, but accepted the outcome and made various undertakings of his willingness to abide by the judgment, until some time in 2023 when he sought to set aside the interlocutory judgment.
25. The 2 nd respondent states that in June 2017, the applicant issued it with various cheques as part of the settlement of the decretal sum. However, upon presentation of the cheques for clearance, they were dishonoured by the bank. Further that he has failed to exhaust all available legal remedies before resorting to filing this petition.
26. It is contended that the applicant has filed an application for setting aside the default judgment issued in MCCOMCC 4586 of 2016 which forms the basis of the committal orders being contested. Further that the 2 nd respondent has over the years tried to have the applicant settle the decretal sum in vain.
27. On 21 st November 2018, the respondent issued a statutory demand seeking to compel the applicant to pay Kshs. 12,633, 175 failure which would result in the filing of a bankruptcy notice. On 10 th December 2018 its advocates wrote to the applicant’s counsel highlighting the failure to honour the Professional Undertaking and the applicant’s counsel responded on 14 th January 2019, denying any such claims against them.
28. On 8 th February 2019, the directors of the interested party were issued with a NTSC why execution should not be granted after the 2 nd respondent filed the application dated 25 th January 2019. On 15 th March 2019, another NTSC was issued to the applicant to explain why he should not be personally arrested and committed to civil jail for Kshs. 14,198,354 but the applicant could not be traced. On 18 th February 2020, through counsel the 2 nd respondent filed an application for registration of a caution on the property LR No. 7149/23 as delineated on Land Survey Plan No. 111609 belonging to the interested party upon which it was determined that a charge had been put over the property by First Community Bank.
29. On 5 th January 2021, the 2 nd respondent filed a garnishee application for orders to investigate and seek the settlement of the decretal sum from the monies held at the applicant’s bank account at First Community Bank; the same was dismissed on the basis that the account was in arrears. On 7 th January 2021, Hon. G.A. Mmosi (SPM) issued a garnishee order decree nisi, and an inter-parties hearing was set for 20 th January 2021.
30. It is therefore pleaded that it is only after such concerted efforts had failed that the 2nd respondent sought arrest warrants to be issued against the applicant on 11 th May 2022. On 5 th July 2022, a letter was sent to the applicant demanding payment of the said instalment of Kshs. 2,500,000 within seven days which were never honoured. On 2 nd October 2023, Hon. Wendy K. Michieni ordered the directors of the interested party to not leave the jurisdiction of the court, to appear personally in court to be orally examined on whether the applicant or interested party herein had any means of satisfying the decree and to produce their bank statements.
31. It is stated that on 14 th September 2023 and 14 th November 2023, the applicant and interested party filed an application to set aside the judgment of MCCOMCC 4586 of 2016 dated 20 th September 2016 and decree issued on 17 th January 2017. On 19 th January 2023, the Court found the applicant’s application dated 19th July 2022, seeking to set aside the consent, bereft of merit and dismissed it. On 6 th November 2023, the 2 nd respondent filed a NTSC why execution should not be issued under Order 22 Rule 18 Civil Procedure (revised) Rules 2010 against the interested party directors. Consequently, the directors were to appear before the court on 15 th November 2023.
32. The 2 nd respondent accuses the applicant of disregarding binding agreements to settle the decretal sum, introducing new facts not raised in the main suit in MCCOMCC 4586 of 2016, and attempting to relitigate matters already determined. It is asserted that the interlocutory judgment and subsequent committal proceedings followed due process.
33. It is urged that the applicant’s claims of facing harassment, arrests and detention to deprive him of property are primarily due to his alleged criminal conduct which has no bearing on the matter, outside the purviews of prayers sought in the petition and is not a defence to his settling of the decretal sum. It is further urged that the allegations of fraud, harassment and coercion are unsupported by evidence.
34. The 2 nd respondent contends that the courts have conclusively held that committal to civil jail for debt is constitutional when due process is observed. The committal to civil jail sought against the applicant is due to his incessant misrepresentation as to the settlement of the decretal sum and his absconding nature that made the execution process impossible through other means.
35. It is pleaded that the applicant’s health and age claims are unverified and do not absolve him of the obligation to satisfy the decree. Further the applicant has not annexed nor filed an affidavit of means to show that he is able or would be able to satisfy the decretal amount. Further that by the applicant failing to pay the sum of Kshs. 10,600,000 plus interests, it violates the 2 nd respondent’s property rights under article 40 (2) of the Constitution. The applicant has also exhibited himself as a person of questionable character and untrustworthy with no known physical abode and executable assets to frustrate the execution of the decree issued.
36. It is contended that the present petition is amounts forum shopping. He is relitigating issues of committal to civil jail while canvassing the same in MCCOMCC 4586 of 2016 where he has filed an application to set aside the judgment.
SUMMARY OF THE APPLICANT'S SUBMISSIONS
37. The applicant’s submissions are dated 18 th March 2026. Reference is made to the decisions in Invesco Assurance Co. Ltd v MW (Minor suing thro’ next friend and mother (HW) [2016] eKLR ; Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR and Judicial Service Commission v Speaker of the National Assembly & another [2013] eKLR on the nature of the conservatory orders.
38. Further reliance is placed on the decisions in Muslim for Human Rights (Milimani) & 2 others v Attorney General & 2 others [2011] eKLR ; Center for Rights Education and Awareness (CREAW) & 7 others v Attorney General [2011] eKLR ; Platinum Distillers Limited v Kenya Revenue Authority [2019] eKLR and Kenya Association of Manufacturers & 2 others v Cabinet Secretary Ministry of Environment and Natural Resources & 3 others [2017] eKLR that vouch for the cautionary approach when granting conservatory orders.
39. The applicant relies on the decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others (supra); Board of Management of Uhuru Secondary School v City Cunty Director of Education & 2 others [2015] eKLR and Wilson Kabeira Nkunja v The Magistrate and Judges Vetting Board and Others [2016] eKLR on the threshold for conservatory orders.
40. On a prima facie case, reliance is placed on the decisions in Mrao v First American Bank of Kenya limited & 2 others [2003] KLR 125 ; David Ndii & others v Attorney General & others [2021] eKLR; Mirugi Kariuki v Attorney General [1992] KLR 8 among others for the contention that in determining whether a matter disclosed a prima facie case, a court must look at the case as a whole. It must weigh the pleadings, the factual basis, the respective parties’ positions, the remedies sought and the law. It must also be guided by articles 22(1) and 258 of the Constitution. He urges that his application meets the principles laid out in Board of Management of Uhuru Secondary School v City County Director of Education & 2 others (supra).
41. The applicant submits that imprisonment because of a civil debt will only amount to abuse and inhumane treatment negating the need for dignity and respect envisaged in the Constitution. Further reliance is placed on articles 3 and 5 of the Universal Declaration of Human Rights (UDHR), article 11 of the International Covenant on Civil and Political Rights (ICCPR) and the decision in Re Zipporah Wambui Mathara Bankruptcy Cause No. 19 of 2010 eKLR that committal to civil jail is a punishment to those who refuse to pay civil debts but not for those who are genuinely unable to pay; it is also unconstitutional.
42. The applicant further relies on article 28 and 29 of the Constitution for the argument that he is an older member of the society with no source of income to pay the civil debt or obey the decree. His committal to civil jail and detention therefore will serve no purpose other than to make mockery of his rights by way of humiliation and embarrassment. Reliance is placed on the decisions in Solomon Muriithi v Jared Mburu [2017] eKLR ; Roans Lauda Moi v Philip Kipchirchir Moi Divorce Case No 154 of 2008; Chimora v Angina Furnishers (Private) Ltd [1997] (Supreme Court of Zimbabwe) and First National Bank v Julia Moseneke and Bank Garborone v Thabang Mosiny (Consolidated). The court is further urged to consider the provisions of article 57 (c) of the Constitution.
SUMMARY OF THE 1 ST RESPONDENTS’ SUBMISSIONS
43. In its submissions dated 17 th July 2024, the 1 st respondent submits the Petition fails the Precision test as pronounced in Anarita Karimi Njeru v Republic [1979] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance and 5 others [2013] eKLR for the argument that it is not enough to list the articles of the Constitution that were allegedly violated and not give specific facts making up the violations. The applicant has not demonstrated how the proceedings before the Magistrates Court, actions of the security agents for arrest and detention were in breach of any law.
44. It is further submitted that the applicant has failed to discharge the evidentiary burden and reference made to the decision in Abuya Abuya v Independent Electoral and Boundaries Commission & Another [2014] eKLR; Constitutional Petition No. 128 of 2006, LT Col. Peter Ngari Kagume & Others v Attorney General and sections 107 and 109 of the Evidence Act Cap 80 stressing that it is incumbent upon the applicant to prove on a balance of probabilities that the allegation he has brought before court is true, this has not been done.
45. In addition the respondent submits that the petition offends the principle of constitutional avoidance; the applicant ought to have filed an appeal rather than a constitutional petition. Reliance is placed on the decisions in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (supra) and Peter Ochara Anam & 3 others v Constituencies Development Fund Board & 4 others [2011] eKLR. Further reliance is placed on the decisions in Kenya Human Rights Commission & another v Attorney General & 6 others [2019] eKLR and Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR) for the submission that the applicant is not entitled to costs.
SUMMARY OF THE 2 ND RESPONDENT’S SUBMISSIONS
46. In its submissions dated 10 th April 2026, the 2 nd respondent cites section 6 of the Civil Procedure Act, Cap 21 Laws of Kenya and the decision in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] KESC 54 (KLR) for the contention that the petition offends the doctrine of sub judice because it seeks in substance, identical reliefs, a stay of execution of the same orders of the trial court as sought in a Notice of Motion dated 20 th February 2026.
47. The 2 nd respondent also relies on section 7 of the Civil Procedure Act and the decision in Henderson v Henderson [1843] 3 Hare 100 for the contention that the applicant had multiple opportunities since the judgment of 2016 and the decree of 2017 to challenge the enforcement mechanisms of the trial court on constitutional grounds but chose not to despite being represented by counsel. He therefore cannot now, eight years after the decree, invoke the Constitution as a shield against legitimate enforcement.
48. It is submitted that the binding Consent Order of 13 th June 2022 further estops him. That to the extent that the trial court has already considered and declined to grant the ex parte relief sought by the applicant on earlier applications, the doctrine of issue estoppel operates to bar him re-agitating those same issues before a superior court. Reliance is placed on the decision in Pancras T Swai v Kenya Breweries Ltd [2014] eKLR where the court cited with approval the case of Mburu Kinyua –Vs- Gachini Tuti [1978] KLR 69 at 81, that res judicata did not only apply to suits, but also to applications.
49. Reliance is placed on Uhuru Highway Development Limited v Central Bank of Kenya & Others [1996] eKLR and Muchanga Investments Limited v. Safaris Unlimited (Africa) Limited & 2 Others [2009] eKLR that the conduct of the applicant amounts to forum shopping. He filed an application before the trial court the Application dated 20 th September 2023 seeking a stay of execution of the decree dated 17 th January 2017, which was dismissed with costs. Filed the Notice of Motion dated 14 th November 2023 seeking, inter alia, stay of the orders of 6 th November 2023, unconditional leave to defend, and ancillary reliefs, which was dismissed with costs by Hon. Wendy K.Micheni in a Ruling delivered on 20 th September 2024 after being heard and determined on their merits.
50. The applicant further filed a Notice of Motion dated 20 th February 2026 in the Magistrate's Court seeking to set aside a Notice to Show Cause (NTSC) and to stay committal proceedings that flow directly from a Consent Order voluntarily entered into by the plaintiff himself on 17 th November 2025, which is yet to be heard and decided. Dissatisfied with the pace of those proceedings (or apprehensive of their failure), he has now filed the present constitutional petition seeking the same substantive reliefs.
51. Citing the case of Communications Commission of Kenya & 5 Others v. Royal Media Services Limited & 5 Others (supra ), it is argued that the applicant's grievance does not raise a constitutional question; it is a commercial dispute in which the applicant is the debtor in default. It is further argued that in any event, the orders of the trial court are constitutionally valid and that the applicant's challenge to the constitutionality of sections 38(D) and 40 of the Civil Procedure Act and Order 22 Rule 7(1) of the Civil Procedure Rules is misconceived. This is because it is settled law that the purpose of committal to civil jail is not punitive but coercive.; aimed at compelling compliance with a court order.
52. It is submitted that article 11 of the ICCPR and the decisions cited by the applicant such as In Re Ziporah Wambui Mathara (supra) is inapplicable in the circumstances of the case. It is further urged that he has not come to court with clean hands as such the application should be dismissed with costs.
ANALYSIS AND DETERMINATION
53. I proceed to determine the application by deciding on the following issues
1. Whether the application offends the doctrine of constitutional avoidance?
2. Whether the applicant has met the threshold for conservatory orders?
3. Arising from (1) and (2) above what are the consequential orders?
Whether the application offends the doctrine of constitutional avoidance
54. Constitutional avoidance, when raised at the outset, operates as a jurisdiction screening device: it asks whether the Court is properly seized of the dispute before it may touch the merits. In Jovet ( Kenya) Limited v Bavaria N. V Petition No. E039 of 2024 , the Supreme Court reiterated that the court sitting as a constitutional court must from the outset inquire whether the Constitution has truly been engaged and pronounced as follows;
[54] This Court has previously adopted the principle of constitutional avoidance in the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others at paragraphs 256- 258 when it found that a copyright infringement claim would be best canvassed in a different forum although it was couched as a constitutional issue. The Court in doing so, relied on the South African decision in S v Mhlungu, 1995 (3) SA 867 (CC) where the Constitutional Court (Kentridge AJ), articulated the principle of avoidance in his minority judgment as follows [at paragraph 59]:
I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.
55. In Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR) , the Court underscored that jurisdiction is foundational when it authoritatively stated
A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation
56. It is thus well settled by judicial precedent that where an alternative statutory or regulatory pathway exists, constitutional recourse is not simply premature; it is outside the Court’s authority. In this sense, avoidance raised preliminarily can dispose of both an interlocutory application and the petition itself in limine , because it interrogates whether the Court has been invited into a dispute that the constitutional architecture assigns elsewhere.
57. In Lugo v Director of Public Prosecutions [2022] KEHC 10574 (KLR) the Court observed as follows:
Courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a court will usually decline to determine whether there has been, in addition, a breach of the Declaration of rights.
58. The Court cited with approval the passage in I Currie &
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