' Background and introduction
1. I have carefully considered the application dated 20th February 2025 filed by the decree holder together with the decree holder’s written submissions. It is worth noting that despite being served with the application and being granted an opportunity to respond to the same, the judgment debtors have not filed any response. Nonetheless, the absence of a response from the judgment debtors does not automatically entitle the decree holder to the reliefs sought. This Court bears the solemn duty to scrutinize the claims advanced by the decree holder and to ascertain whether they meet the requisite evidentiary and legal threshold before any orders can be granted.
2. The application before the Court seeks the issuance of fresh warrants of arrest and committal to civil jail of Mr. Harimara Iyer Ganapathi, the 2nd judgment debtor in these proceedings. Mr. Ganapathi is identified as an Indian national and holder of Passport No. Z2316828. The basis of the application is his continued failure to satisfy the decretal sum as ordered by this Court. In addition to the warrant of arrest, the decree holder prays for consequential orders directing the Director of Immigration Services and the Officer Commanding Station at Jomo Kenyatta International Airport Police Station to effectuate the said warrant, thereby facilitating the arrest and committal of the 2nd judgment debtor.
3. The application is brought under Section 3A, 38, 42 (1) and 63 (e) of the Civil Procedure Act, Cap. 21 and Orders 51 Rules 1 & 4 of the Civil Procedure Rules as well as Article 159 (2) (d) of the Constitution.
Analysis and Determination
4. Section 38 of the Civil Procedure Act imposes upon this Court a statutory obligation to facilitate the enforcement of decrees issued in its name. It empowers the Court to assist decree holders in executing judgments through various mechanisms, including the issuance of warrants of arrest and committal to civil jail of judgment debtors who fail to satisfy decretal sums.
5. Complementing this provision is Order 22 Rule 34 of the Civil Procedure Rules, which outlines the considerations the Court must consider before issuing such orders. These include the debtor’s means, conduct, and any mitigating circumstances that may justify or preclude committal.
6. Upon perusal of the record, it is evident that a decree was issued on 4th July 2023 against the judgment debtors. The CR12 document annexed to the application, dated 3rd June 2020, confirms that the 2nd judgment debtor, Mr. Harimara Iyer Ganapathi, is the sole director and shareholder of the 1st judgment debtor. The same document, alongside other material on record, establishes that Mr. Ganapathi is an Indian national.
7. I have also considered the Ruling delivered on 29th October 2024 by Hon. Noelle Kyanya, which provides a background to the present application. In that ruling, the 2nd judgment debtor was committed to civil jail on 3rd October 2024 for failure to pay a decretal sum amounting to approximately KES 37 million, inclusive of accrued interest. On the date of the ruling, counsel for the judgment debtor presented a medical report from the prison doctor detailing the debtor’s health complications and the need for specialized treatment.
8. In light of this, the Court granted conditional release, requiring the judgment debtor to deposit KES 1.5 million immediately into an account designated by the decree holder, and to thereafter remit monthly payments of KES 500,000.00 by the 5th day of each month beginning 5th December 2024. The Court further directed that failure to comply with these terms would entitle the decree holder to seek re-arrest and recommittal of the debtor to civil jail. Parties were also encouraged to continue negotiating a more sustainable payment plan.
9. The judgment debtor is absent and has not filed any response to the application. There is no evidence before this Court to demonstrate compliance with the payment obligations set out in the ruling of 29th October 2024. Moreover, the decree holder has averred, and this has not been controverted, that the judgment debtor, while still owing the decretal sum, obtained orders for the release of his passport and absconded from the jurisdiction, thereby frustrating the enforcement of the decree.
10. The purpose of an order under Order 22 Rule 34 is to ensure that a judgment debtor who has the means to satisfy a decree does not evade responsibility by withholding payment. It serves as a coercive mechanism to compel compliance with lawful court orders, particularly where the debtor has demonstrated unwillingness or bad faith in settling the debt.
11. The Court cannot condone such conduct, which undermines the authority of judicial orders and the rights of decree holders to enjoy the fruits of their judgments. The judgment debtor has demonstrated a pattern of non-compliance and evasion, and the coercive powers of the Court must now be invoked to compel satisfaction of the decree.
Disposition
12. Accordingly, the application dated 20th February 2025 is allowed and the following orders do hereby issue:
i. That fresh warrants of arrest and committal to civil jail be and are hereby issued against Mr. Harimara Iyer Ganapathi, the 2nd judgment debtor herein, for failure to satisfy the decretal sum as ordered by this Court.
ii. That the Director of Immigration Services and the Officer Commanding Station, Jomo Kenyatta International Airport Police Station, are hereby directed to execute the said warrant of arrest and to take all necessary steps to apprehend the judgment debtor should he re-enter the jurisdiction.
iii. The costs of the application shall be borne by the judgment debtors.
'
1. I have carefully considered the application dated 20th February 2025 filed by the decree holder together with the decree holder’s written submissions. It is worth noting that despite being served with the application and being granted an opportunity to respond to the same, the judgment debtors have not filed any response. Nonetheless, the absence of a response from the judgment debtors does not automatically entitle the decree holder to the reliefs sought. This Court bears the solemn duty to scrutinize the claims advanced by the decree holder and to ascertain whether they meet the requisite evidentiary and legal threshold before any orders can be granted.
2. The application before the Court seeks the issuance of fresh warrants of arrest and committal to civil jail of Mr. Harimara Iyer Ganapathi, the 2nd judgment debtor in these proceedings. Mr. Ganapathi is identified as an Indian national and holder of Passport No. Z2316828. The basis of the application is his continued failure to satisfy the decretal sum as ordered by this Court. In addition to the warrant of arrest, the decree holder prays for consequential orders directing the Director of Immigration Services and the Officer Commanding Station at Jomo Kenyatta International Airport Police Station to effectuate the said warrant, thereby facilitating the arrest and committal of the 2nd judgment debtor.
3. The application is brought under Section 3A, 38, 42 (1) and 63 (e) of the Civil Procedure Act, Cap. 21 and Orders 51 Rules 1 & 4 of the Civil Procedure Rules as well as Article 159 (2) (d) of the Constitution.
Analysis and Determination
4. Section 38 of the Civil Procedure Act imposes upon this Court a statutory obligation to facilitate the enforcement of decrees issued in its name. It empowers the Court to assist decree holders in executing judgments through various mechanisms, including the issuance of warrants of arrest and committal to civil jail of judgment debtors who fail to satisfy decretal sums.
5. Complementing this provision is Order 22 Rule 34 of the Civil Procedure Rules, which outlines the considerations the Court must consider before issuing such orders. These include the debtor’s means, conduct, and any mitigating circumstances that may justify or preclude committal.
6. Upon perusal of the record, it is evident that a decree was issued on 4th July 2023 against the judgment debtors. The CR12 document annexed to the application, dated 3rd June 2020, confirms that the 2nd judgment debtor, Mr. Harimara Iyer Ganapathi, is the sole director and shareholder of the 1st judgment debtor. The same document, alongside other material on record, establishes that Mr. Ganapathi is an Indian national.
7. I have also considered the Ruling delivered on 29th October 2024 by Hon. Noelle Kyanya, which provides a background to the present application. In that ruling, the 2nd judgment debtor was committed to civil jail on 3rd October 2024 for failure to pay a decretal sum amounting to approximately KES 37 million, inclusive of accrued interest. On the date of the ruling, counsel for the judgment debtor presented a medical report from the prison doctor detailing the debtor’s health complications and the need for specialized treatment.
8. In light of this, the Court granted conditional release, requiring the judgment debtor to deposit KES 1.5 million immediately into an account designated by the decree holder, and to thereafter remit monthly payments of KES 500,000.00 by the 5th day of each month beginning 5th December 2024. The Court further directed that failure to comply with these terms would entitle the decree holder to seek re-arrest and recommittal of the debtor to civil jail. Parties were also encouraged to continue negotiating a more sustainable payment plan.
9. The judgment debtor is absent and has not filed any response to the application. There is no evidence before this Court to demonstrate compliance with the payment obligations set out in the ruling of 29th October 2024. Moreover, the decree holder has averred, and this has not been controverted, that the judgment debtor, while still owing the decretal sum, obtained orders for the release of his passport and absconded from the jurisdiction, thereby frustrating the enforcement of the decree.
10. The purpose of an order under Order 22 Rule 34 is to ensure that a judgment debtor who has the means to satisfy a decree does not evade responsibility by withholding payment. It serves as a coercive mechanism to compel compliance with lawful court orders, particularly where the debtor has demonstrated unwillingness or bad faith in settling the debt.
11. The Court cannot condone such conduct, which undermines the authority of judicial orders and the rights of decree holders to enjoy the fruits of their judgments. The judgment debtor has demonstrated a pattern of non-compliance and evasion, and the coercive powers of the Court must now be invoked to compel satisfaction of the decree.
Disposition
12. Accordingly, the application dated 20th February 2025 is allowed and the following orders do hereby issue:
i. That fresh warrants of arrest and committal to civil jail be and are hereby issued against Mr. Harimara Iyer Ganapathi, the 2nd judgment debtor herein, for failure to satisfy the decretal sum as ordered by this Court.
ii. That the Director of Immigration Services and the Officer Commanding Station, Jomo Kenyatta International Airport Police Station, are hereby directed to execute the said warrant of arrest and to take all necessary steps to apprehend the judgment debtor should he re-enter the jurisdiction.
iii. The costs of the application shall be borne by the judgment debtors.
'