1. The court below delivered a judgment in favour of the respondent. East Africa Cargo Logistics Ltd, a limited liability company in which the appellant is a director, was required to pay the respondent the decretal sum specified in the judgment, as well as the costs of the suit.
2. Upon not getting paid, the respondent applied to have the corporate veil lifted. It is upon the lifting of the corporate veil that the appellant, as the Managing Director of East Africa Cargo Logistics Ltd, was served with a notice to show cause why she should not be committed to civil jail for the company’s failure to pay the decretal sum and costs. Thereafter, on 4th November 2025, warrants for her arrest were issued. The appellant was aggrieved by the said decision; consequently, she filed an appeal to this court. To preserve her liberty pending the hearing and determination of the appeal, the appellant filed the notice of motion dated 10th November 2025, seeking a stay of execution of the ruling of the subordinate court pending the hearing and determination of the instant application and also the appeal.
3. The main contention of the appellant is that the trial court was wrong and, in fact, misapplied Order 22, Rule 34 (2) (b) of the Civil Procedure Rules, 2010. Further, the court disregarded the constitutional and statutory safeguards under Article 11 of the International Covenant on Civil and Political Rights and Article 29 of the Constitution of Kenya 2010, which, it was contended, protect individuals from imprisonment merely on the grounds of inability to settle civil debt. Committal to civil jail, it was stated, is a remedy of the last resort.
4. In an affidavit sworn on 24th November 2025, sworn by Mr Benson Mwangi Ngumo, it was deposed that a judgment was entered in favour of the respondent in the sum US $21,800 on 28th May 2021. The said amount was subject to costs and interest. There was no payment, forcing the respondent to attempt execution by various means. These, however, did not elicit payment. When the veil was lifted, the applicant was unable to provide a reasonable and or satisfactory explanation. This led to the issuance of the impugned orders. Issuance of such orders, he contended, was in accordance with the mandatory provision of section 38 of the Civil Procedure Act, 2010 and did not amount to a violation of the applicant’s freedom and or rights.
5. It was urged that the application dated 10th November 2025 was devoid of merit, frivolous, and an abuse of the court process.
6. The application was canvassed by way of written submissions. The submissions of the applicant are dated 2nd December 2025. In the said submissions, it was urged that the grant of an order staying execution of the impugned decision would preserve the status quo, prevent irreparable harm, and ensure that the appeal can be heard on its merits, without prejudice to either party.
7. It was urged that committal to a civil jail of a judgment debtor should not easily be resorted to unless there was dishonesty or fraud.
8. On the other hand, the respondent filed written submissions dated 4th January 2026 in which it was urged that committal to civil jail was lawful, and was permissible under Article 24 of the Constitution and Section 38 of the Civil Procedure. Counsel relied on the case of Wanjiku & another v Attorney General & another; Muna & another (Interested Parties) [2012] KEHC 5410 (KLR) and African Commuter Services Ltd v Kenya Civil Aviation Authority & others [2014] eKLR.
9. I have considered the application, the responses thereto, and the submissions of the parties. The issue for my determination is whether orders staying the execution of the impugned decision should be issued pending the hearing and determination of the appeal.
10. Stay of execution may be granted by the Court where an applicant demonstrates that:
a. She may suffer substantial loss unless a stay is granted;
b. The application was filed without undue delay;
c. Security for the due performance of the decree or order that may ultimately be made has been given.
See Order 42 Rule 6 (2) of the Civil Procedure Rules.
11. There is no doubt that the application was filed without undue delay. The applicant has also expressed readiness to abide by any conditions the court may impose. In my view, conditions b and c have been met. That leaves the first condition. I will discuss the said condition below.
12. There is no doubt that what is at risk for the applicant is loss of her liberty. There is no contestation that there is a valid, regular judgment against East African Cargo Logistics Ltd, a company in which the applicant is a managing director. The debt remains unsatisfied despite the best efforts to execute the judgment.
13. Whether the applicant will suffer substantial loss requires, in my view, consideration of 2 elements: whether the execution process will result in an outcome that a successful appeal may not undo, and whether the appeal is arguable. In the case of JAMES WANGALWA & ANOTHER V AGNES NALIAKA CHESETO [2012] KEHC 1094 (KLR), it was held that:
“11. No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.
The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:
“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
With this observation, of course, a frivolous appeal cannot in practical terms be rendered nugatory…”
14. The appeal is premised on the contention that the committal to a civil jail of the applicant is unlawful, as it should have been a measure of the last resort. Without going into the merits of the appeal, which the Court will consider in due course. I note that execution by way of committal to a civil jail is permissible under Section 38 of the Civil Procedure Act. The said provision has been deemed as being constitutional in a number of decisions of the High Court, such as Charles Lutta Kasamani v Concord Insurance Co Ltd & Deputy Registrar Milimani High Court Commercial and Admiralty Division [2018] KEHC 8952 (KLR). In the said case, the High Court held that:
“38. Article 11 of ICCPR and section 38 of the Civil Procedure Act protect the dignity of those who are unable to pay, but should not be taken as a blanket cover for even those who have the means but refuse to pay and instead seek refuge under Article 11 of ICCPR. Giving a different interpretation to Article 11, would render execution process under the Civil Procedure Act and Rules meaningless in so far as committal to civil jail as a means of recovering money awarded in a decree is concerned.
39. The petitioner also contended that his committal to civil jail violated his rights and fundamental freedoms and, in particular, the right to liberty and dignity. It was argued that the committal limited his right in contravention of Article 24(1) of the Constitution. Article 28 of the Constitution provides that every person has inherent dignity and the right to have that dignity respected and protected. Article 29, on the other hand, guarantees freedom and security of the person including the right not to be deprived of his freedom arbitrarily, not to be subjected to violence, not to be detained without trial, and not to be treated or punished in a cruel, inhuman or degrading manner.
40. These rights though granted by the Constitution, are not absolute. The Constitution itself states in Article 24(1) that rights under the Constitution may be limited by law where the limitation is reasonable and justifiable in an open and democratic society. The limitation is by law namely sections 38 and 40 of the Civil Procedure Act and Rules under Order 21. The limitation is also reasonable, in my view, because it is meant to enforce Court decrees where a party, though with means, refuses to meet his obligations under the decree. This limitation, in my respectful view, is also justifiable and permissible in a society guided by democratic principles and the rule of law.”
15. I am not persuaded that the applicant would suffer substantial loss if the application was denied. The respondent, in my view, is entitled to be paid, and it would be most unfortunate for fetters to be erected on its part without a just cause.
16. The upshot of the foregoing is that the application dated 10th November 2025 is without merit. The same is dismissed. Costs shall abide the outcome of the appeal.
17. It is so ordered.
Dated and signed at Mombasa, this 16th day of March 2026. Delivered virtually through Microsoft TEAMS.
2. Upon not getting paid, the respondent applied to have the corporate veil lifted. It is upon the lifting of the corporate veil that the appellant, as the Managing Director of East Africa Cargo Logistics Ltd, was served with a notice to show cause why she should not be committed to civil jail for the company’s failure to pay the decretal sum and costs. Thereafter, on 4th November 2025, warrants for her arrest were issued. The appellant was aggrieved by the said decision; consequently, she filed an appeal to this court. To preserve her liberty pending the hearing and determination of the appeal, the appellant filed the notice of motion dated 10th November 2025, seeking a stay of execution of the ruling of the subordinate court pending the hearing and determination of the instant application and also the appeal.
3. The main contention of the appellant is that the trial court was wrong and, in fact, misapplied Order 22, Rule 34 (2) (b) of the Civil Procedure Rules, 2010. Further, the court disregarded the constitutional and statutory safeguards under Article 11 of the International Covenant on Civil and Political Rights and Article 29 of the Constitution of Kenya 2010, which, it was contended, protect individuals from imprisonment merely on the grounds of inability to settle civil debt. Committal to civil jail, it was stated, is a remedy of the last resort.
4. In an affidavit sworn on 24th November 2025, sworn by Mr Benson Mwangi Ngumo, it was deposed that a judgment was entered in favour of the respondent in the sum US $21,800 on 28th May 2021. The said amount was subject to costs and interest. There was no payment, forcing the respondent to attempt execution by various means. These, however, did not elicit payment. When the veil was lifted, the applicant was unable to provide a reasonable and or satisfactory explanation. This led to the issuance of the impugned orders. Issuance of such orders, he contended, was in accordance with the mandatory provision of section 38 of the Civil Procedure Act, 2010 and did not amount to a violation of the applicant’s freedom and or rights.
5. It was urged that the application dated 10th November 2025 was devoid of merit, frivolous, and an abuse of the court process.
6. The application was canvassed by way of written submissions. The submissions of the applicant are dated 2nd December 2025. In the said submissions, it was urged that the grant of an order staying execution of the impugned decision would preserve the status quo, prevent irreparable harm, and ensure that the appeal can be heard on its merits, without prejudice to either party.
7. It was urged that committal to a civil jail of a judgment debtor should not easily be resorted to unless there was dishonesty or fraud.
8. On the other hand, the respondent filed written submissions dated 4th January 2026 in which it was urged that committal to civil jail was lawful, and was permissible under Article 24 of the Constitution and Section 38 of the Civil Procedure. Counsel relied on the case of Wanjiku & another v Attorney General & another; Muna & another (Interested Parties) [2012] KEHC 5410 (KLR) and African Commuter Services Ltd v Kenya Civil Aviation Authority & others [2014] eKLR.
9. I have considered the application, the responses thereto, and the submissions of the parties. The issue for my determination is whether orders staying the execution of the impugned decision should be issued pending the hearing and determination of the appeal.
10. Stay of execution may be granted by the Court where an applicant demonstrates that:
a. She may suffer substantial loss unless a stay is granted;
b. The application was filed without undue delay;
c. Security for the due performance of the decree or order that may ultimately be made has been given.
See Order 42 Rule 6 (2) of the Civil Procedure Rules.
11. There is no doubt that the application was filed without undue delay. The applicant has also expressed readiness to abide by any conditions the court may impose. In my view, conditions b and c have been met. That leaves the first condition. I will discuss the said condition below.
12. There is no doubt that what is at risk for the applicant is loss of her liberty. There is no contestation that there is a valid, regular judgment against East African Cargo Logistics Ltd, a company in which the applicant is a managing director. The debt remains unsatisfied despite the best efforts to execute the judgment.
13. Whether the applicant will suffer substantial loss requires, in my view, consideration of 2 elements: whether the execution process will result in an outcome that a successful appeal may not undo, and whether the appeal is arguable. In the case of JAMES WANGALWA & ANOTHER V AGNES NALIAKA CHESETO [2012] KEHC 1094 (KLR), it was held that:
“11. No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.
The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:
“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
With this observation, of course, a frivolous appeal cannot in practical terms be rendered nugatory…”
14. The appeal is premised on the contention that the committal to a civil jail of the applicant is unlawful, as it should have been a measure of the last resort. Without going into the merits of the appeal, which the Court will consider in due course. I note that execution by way of committal to a civil jail is permissible under Section 38 of the Civil Procedure Act. The said provision has been deemed as being constitutional in a number of decisions of the High Court, such as Charles Lutta Kasamani v Concord Insurance Co Ltd & Deputy Registrar Milimani High Court Commercial and Admiralty Division [2018] KEHC 8952 (KLR). In the said case, the High Court held that:
“38. Article 11 of ICCPR and section 38 of the Civil Procedure Act protect the dignity of those who are unable to pay, but should not be taken as a blanket cover for even those who have the means but refuse to pay and instead seek refuge under Article 11 of ICCPR. Giving a different interpretation to Article 11, would render execution process under the Civil Procedure Act and Rules meaningless in so far as committal to civil jail as a means of recovering money awarded in a decree is concerned.
39. The petitioner also contended that his committal to civil jail violated his rights and fundamental freedoms and, in particular, the right to liberty and dignity. It was argued that the committal limited his right in contravention of Article 24(1) of the Constitution. Article 28 of the Constitution provides that every person has inherent dignity and the right to have that dignity respected and protected. Article 29, on the other hand, guarantees freedom and security of the person including the right not to be deprived of his freedom arbitrarily, not to be subjected to violence, not to be detained without trial, and not to be treated or punished in a cruel, inhuman or degrading manner.
40. These rights though granted by the Constitution, are not absolute. The Constitution itself states in Article 24(1) that rights under the Constitution may be limited by law where the limitation is reasonable and justifiable in an open and democratic society. The limitation is by law namely sections 38 and 40 of the Civil Procedure Act and Rules under Order 21. The limitation is also reasonable, in my view, because it is meant to enforce Court decrees where a party, though with means, refuses to meet his obligations under the decree. This limitation, in my respectful view, is also justifiable and permissible in a society guided by democratic principles and the rule of law.”
15. I am not persuaded that the applicant would suffer substantial loss if the application was denied. The respondent, in my view, is entitled to be paid, and it would be most unfortunate for fetters to be erected on its part without a just cause.
16. The upshot of the foregoing is that the application dated 10th November 2025 is without merit. The same is dismissed. Costs shall abide the outcome of the appeal.
17. It is so ordered.
Dated and signed at Mombasa, this 16th day of March 2026. Delivered virtually through Microsoft TEAMS.