The Application
Kenya Railways Corporation has come to this court with application dated 14th January 2026 seeking orders that in the interim and pending the inter parte hearing of the present motion the honourable court be pleased to lift, suspend and/or stay execution and/or enforcement o of the warrants of arrest issued on 14th July 2025 against Mr. Philip Mainga. (This prayer is spent) and that this Honourable Court be pleased to issue a date for the hearing of the Notice to Show Cause on an urgent and priority basis. Moreover, that the Honourable court be pleased to issue and other and further order(s) it deems fit and expedient in the circumstances. Lastly, that the costs of this Application be provided for.
The application is based on grounds that the Honourable court issued warrants of arrest against the Applicant's Managing Director on 14th July 2025 which were extended on 7th October 2025 and 12th November 2025. The failure to honour the summons on 14th July 2025 was neither deliberate nor intentional but informed by circumstances outside his control. The non-attendance was occasioned by the breakdown in communication between the Corporation and its former Advocates, a fact that necessitated the appointment of a new advocate to come, on record.
That Mr. Maina is ready and willing to honour the summons and attend court as and when required to pave way for the expeditious disposal of the show cause proceedings. It is in the interest of justice that the court does issue and order suspending and/or staying the execution and/or enforcement of the warrants of arrest pending determination of the present motion.
The supporting affidavit is sworn by Stanley Gitari who states he is well versed with the facts at hand. He is aware that the court vide a ruling dated and delivered on 25th June 2025 cited the Corporation's Managing Director for contempt for disobedience of the orders of the court issued on 14th November 2023 and confirmed on 9th October 2024. That the court subsequently reserved the hearing of the contempt proceedings for 14th July 2025 and subsequently issued summons to the deponent for the MD's attendance on the said date.
That owing to a breakdown of communication between the Applicant and its former lawyers, the Managing Director was not informed of the Summons to attend court and the warrants. This necessitated the corporation to appoint a new lawyer on record to prosecute the application. He is equally aware that the warrants of arrest were extended on 7th October and additionally on 12th November 2025 and remain subsisting to date. That the failure to honour the summons was neither deliberate nor intentional. The Managing Director is ready and willing to attend court and abide, by any and such directions as the honourable court may deem fit to impose to secure his attendance for hearing of the notice to show cause. He beseeks the honorable court to lift, suspend and/or stay the execution and/or enforcement of the warrants of arrest.
The Reply
Jihan Freighters Ltd, the Petitioner opposes the application on grounds:
1. The application has no substantive prayer that can be granted interpartes.
2. There was inordinate delay in bringing the application.
3. The Applicant has not given any sufficient reasons for granting the orders sought.
4. The Notice to Show Cause has been heard and determined and there is no basis why the same should be assigned another hearing date.
5. The Applicant has not met the threshold for granting the orders sought.
Rival Submissions
The applicant submits in this case, the Respondent was a tenant of the Applicant herein pursuant to a lease agreement dated 10.012022. The Petitioner/ Respondent was issued with a termination notice dated 14th July 2023 requiring them to hand over vacant possession on or before 13th August 2023. The lease agreement clearly allowed the Applicant herein the right of re-entry in the event of breach. Following the breach, the Applicant herein re-entered the premises on 03.112023. The Petitioner/ Respondent obtained Conservatory Orders dated 14th November 2023 way after the Petitioner had been evicted from the premises and the premises handed over to the Ministry of Interior to serve as a critical security installation for the security agencies operating within the region.
The Petitioner had already been evicted on 03.112023. The property is presently in use as a security installation and is guarded by GSU officers round the clock. The applicant submits that the Respondent/Applicant has no control of access on the premises since the property is presently occupied by the new tenant.
The orders were overtaken by events and the Petitioner has been out of the property ever since. The court found the Respondent/Applicant's Managing Director in Contempt of court for disobeying the orders of 14.112023 by not giving the Petitioner access despite the fact that there was already a new occupant to the premises and even the Applicant herein cannot get access to the security installation.
The Honourable court issued warrants of arrest against the Applicant's Managing Director on 14th July 2025 which were extended on 7th October 2025 and 12th November 2025.
The failure to honour the summons on 14th July 2025 was neither deliberate nor intentional but informed by circumstances outside his control. The non-attendance was occasioned by the breakdown in communication between the Corporation and its former Advocates, a fact that necessitated the appointment of a new advocate to come on record.
The Warrants of Arrest should be lifted in the interim and the matter scheduled for a show cause hearing to enable the Applicant herein appear and demonstrate to the court that the orders were overtaken by events.
Issuance of Warrants of Arrest and Committal to Civil Jail is an extreme form of execution that is difficult to remedy once the harm is done especially since the Petition is yet to be heard. The suit herein is entirely incompetent in form since it is premised on a contractual dispute and not a constitutional violation.
The Petitioner/Respondents submits the facts of the matter stem from ruling delivered on 25th June 2025, by Hon Justice Stephen Kibunja wherein he found Philip Mainga, the Managing Director of the Respondent, to have disobeyed the court order of 14th November 2023, that was confirmed on 9th October 2024, by continuing to deny the Petitioner access to the suit premises.
The judge ordered Philip Maingi to appear in court on 4th July 2025 to show cause. He did not appear in court hence warrants of arrest were issued against him to be executed by the Inspector General of Police.
The warrants of arrest were extracted on 28th August 2025 and served upon the Inspector General of Police on 16th September 2025 by the Petitioner's erstwhile advocate, Aboubakar Mwanakitina & Co. Advocates to seize and take into custody Mr. Philip Mainga.
On 7th October 2025 the Respondent's erstwhile Advocate, Mr. Brian Mbaabu, informed court that they were negotiating with the Petitioner to settle the matter and that the served warrant of arrest did not disclose the date when Mr. Philip Mainga was to appear in court.
Consequently, the Petitioner's current Advocate, prayed for the extension of the warrant of arrest as the previous warrant of arrest was erroneous and did not state the date when Mr. Philip Mainga was to be brought to court.
The extended warrant of arrest was re-issued on 21st October 2025 and served upon the Inspector General of police on 23rd October 2025 which stated that Mr. Philip Mainga was to be brought to court on 12th November 2025.
Mr. Philip Mainga failed to appear in court on 12th November 2025 and vide an order of the court issued on 2nd December 2025, summons were issued to the Inspector General of Police to come to court on 18th February 2026 and explain why the warrants issued on 21st October 2025 has not been executed.
Before that could happen, the Respondent filed the present application dated 14th January 2024 which is the subject of these submissions.
The Petitioner opposed the application vide Grounds of Opposition dated 20th January 2026.
The respondent submits that prayers (1), (2) and (3) are spent and overtaken by events. The only prayers remaining in the application are prayers (4), (5) and (6). According to the respondent, prayer (5) is not a specific. It does not specify what the Applicant wants. Prayer (6) is for costs. Costs follow the event. Effectively, the only substantive prayer that remains in the application is prayer (4). The import of prayer4 is that this Honourable Court be pleased to issue a date for the hearing of the Notice to Show Cause on an urgent and priority basis. According to the respondent, the above prayer cannot be granted. The notice to show cause which the prayer seeks a hearing date for was already heard by Justice Kibunja. The record of this court will show that after delivering his application on 25th June 2025 in which he found the Respondent's Managing Director (MD), Philip Mainga, to be in contempt of court, Justice Kibunja ordered as follows: The MD to be availed in court on 14.72025. Notice to be served by the Petitioner. "
The respondent submits that the purpose of the MD's attendance in court on 14th July 2025 was to show cause. He did not attend the court hence the Judge issued a warrant of arrest against him. The show cause was dispensed with on 14th July 2025 when the MD failed to turn up. There is no show cause hearing that is still pending and which the court can assign a hearing date for as sought in prayer (4) - which is the only substantive prayer in the application.
It would have been a different scenario if the Applicant had first sought an order to set aside the proceedings which had taken place in court and more particularly the proceedings of 14th July 2025 when the MD was required to appear in court to show cause and when Justice Kibunja issued warrants of arrest against him because he did not turn up in court.
Without a substantive prayer seeking to set aside the proceedings of 14th July 2025 and the warrants of arrest, the order seeking only a date for hearing of the notice to show cause cannot be granted because the notice to show cause has been heard and is no longer available to be assigned a hearing date. In fact, if the notice to show cause were still pending, one does not require the court to assign it a hearing date, it can easily be fixed for hearing in the registry. As it is, the Applicant has not applied to set aside the warrants of arrest but has only sought interim stay of the same to last until the application is heard and determined. After a ruling for the application is delivered, there will be nothing left and no further orders can be granted by the court. The matter will end with the ruling which must inevitably dismiss the application.
It is now clear that all prayers in the application are overtaken by events. Overtaken by events because prayers (1), (2) and (3) are interim ones which have already been granted by the court and will last until the determination of the application while prayer (4) cannot be granted because there is no pending notice to show cause that can be assigned a hearing date, Justice Kibunja having dispensed with the notice to show cause on 14th July 202. For the foregoing reasons alone, the respondent contends that the application has no prayer capable of being granted and must be dismissed.
The warrants of arrest were issued by Justice Kibunja on 14th July 2025. The application was filed on 14th January 2026 after 6 months. The delay of 6 months is inordinate. No explanation has been given for such a long delay.
The Applicant took the issue lightly and only came to court after the Inspector General of Police has been summoned. That is when it dawned on the Applicant that the matter is serious.
The Applicant states casually in the application that its Managing Director, Philip Mainga, failed to attend court because "breakdown in communication between the Corporation and its former Advocates." The nature of communication breakdown is not explained. The court record indicates that Mr. Mbaabu, the Applicant's Advocate was in court on 14th July 2025 when the MD was expected in court to show cause before warrants of arrest could be issued against him. On that day, Mr. Mbabu informed the court that there was a certain document that the Applicant wanted to file and that the MD would come to court after that document had been filed in court. The Applicant has not denied the information relayed to court on its behalf on 14th July 2025 by Mr. Mbaabu. There is no affidavit Mr. Mbaabu to indicate that what he communicated to court on that day were not instructions from the Applicant.
Analysis and Detrmination
I have considered the application and the grounds of opposition and the rival submissions and do find that the matter is scheduled for hearing on the 18th of February 2026 for the attendance of the inspector general of police to explain why he has failed to execute the warrants of arrest herein as issued by the court. The Inspector General just like the managing director of Kenya railways has failed to obey court orders.
The application herein is meant to preempt the coming to court by the inspector General to explain why he has failed to arrest the Managing Director Kenya Railways. I do find that the application before me is not merited because it seeks to assist the managing director Kenya railways to continue disrespecting court orders. The managing director Kenya Railways is Philip Mainga and not Stanley Gitari who has sworn the affidavit in support of the application. Mr Philip Mainga has not deponed any affidavit to explain why he has failed to attend court to show because why he should not be jailed for being in contempt of court order. I do not wish to use a lot of ink and paper on the issues herein and do order that the matter do proceed on 18th of February 2026 for notice to show cause why the inspector general Kenya Police Service has failed to arrest the Managing Director Kenya Railways, Mr Philip Mainga and bring him to court to show cause for contempt of Court. The notice to show cause against the managing director Kenya railways is still pending in court as the managing director did not attend court. The Inspector General is supposed to arrest the managing director and bring him to court. He can bring him to court on the 18th of February 2026 or attend and explain why he has failed to arrest the managing director and bring him to court. I do find no merit in the application and the same is dismissed with costs. The matter to be mentioned on 18th February 2026. The inspector General, Kenya Police Service to attend court and show cause why he has not obeyed the court order to arrest Mr Philip Mainga and bring him to court to answer the notice to show cause.
Kenya Railways Corporation has come to this court with application dated 14th January 2026 seeking orders that in the interim and pending the inter parte hearing of the present motion the honourable court be pleased to lift, suspend and/or stay execution and/or enforcement o of the warrants of arrest issued on 14th July 2025 against Mr. Philip Mainga. (This prayer is spent) and that this Honourable Court be pleased to issue a date for the hearing of the Notice to Show Cause on an urgent and priority basis. Moreover, that the Honourable court be pleased to issue and other and further order(s) it deems fit and expedient in the circumstances. Lastly, that the costs of this Application be provided for.
The application is based on grounds that the Honourable court issued warrants of arrest against the Applicant's Managing Director on 14th July 2025 which were extended on 7th October 2025 and 12th November 2025. The failure to honour the summons on 14th July 2025 was neither deliberate nor intentional but informed by circumstances outside his control. The non-attendance was occasioned by the breakdown in communication between the Corporation and its former Advocates, a fact that necessitated the appointment of a new advocate to come, on record.
That Mr. Maina is ready and willing to honour the summons and attend court as and when required to pave way for the expeditious disposal of the show cause proceedings. It is in the interest of justice that the court does issue and order suspending and/or staying the execution and/or enforcement of the warrants of arrest pending determination of the present motion.
The supporting affidavit is sworn by Stanley Gitari who states he is well versed with the facts at hand. He is aware that the court vide a ruling dated and delivered on 25th June 2025 cited the Corporation's Managing Director for contempt for disobedience of the orders of the court issued on 14th November 2023 and confirmed on 9th October 2024. That the court subsequently reserved the hearing of the contempt proceedings for 14th July 2025 and subsequently issued summons to the deponent for the MD's attendance on the said date.
That owing to a breakdown of communication between the Applicant and its former lawyers, the Managing Director was not informed of the Summons to attend court and the warrants. This necessitated the corporation to appoint a new lawyer on record to prosecute the application. He is equally aware that the warrants of arrest were extended on 7th October and additionally on 12th November 2025 and remain subsisting to date. That the failure to honour the summons was neither deliberate nor intentional. The Managing Director is ready and willing to attend court and abide, by any and such directions as the honourable court may deem fit to impose to secure his attendance for hearing of the notice to show cause. He beseeks the honorable court to lift, suspend and/or stay the execution and/or enforcement of the warrants of arrest.
The Reply
Jihan Freighters Ltd, the Petitioner opposes the application on grounds:
1. The application has no substantive prayer that can be granted interpartes.
2. There was inordinate delay in bringing the application.
3. The Applicant has not given any sufficient reasons for granting the orders sought.
4. The Notice to Show Cause has been heard and determined and there is no basis why the same should be assigned another hearing date.
5. The Applicant has not met the threshold for granting the orders sought.
Rival Submissions
The applicant submits in this case, the Respondent was a tenant of the Applicant herein pursuant to a lease agreement dated 10.012022. The Petitioner/ Respondent was issued with a termination notice dated 14th July 2023 requiring them to hand over vacant possession on or before 13th August 2023. The lease agreement clearly allowed the Applicant herein the right of re-entry in the event of breach. Following the breach, the Applicant herein re-entered the premises on 03.112023. The Petitioner/ Respondent obtained Conservatory Orders dated 14th November 2023 way after the Petitioner had been evicted from the premises and the premises handed over to the Ministry of Interior to serve as a critical security installation for the security agencies operating within the region.
The Petitioner had already been evicted on 03.112023. The property is presently in use as a security installation and is guarded by GSU officers round the clock. The applicant submits that the Respondent/Applicant has no control of access on the premises since the property is presently occupied by the new tenant.
The orders were overtaken by events and the Petitioner has been out of the property ever since. The court found the Respondent/Applicant's Managing Director in Contempt of court for disobeying the orders of 14.112023 by not giving the Petitioner access despite the fact that there was already a new occupant to the premises and even the Applicant herein cannot get access to the security installation.
The Honourable court issued warrants of arrest against the Applicant's Managing Director on 14th July 2025 which were extended on 7th October 2025 and 12th November 2025.
The failure to honour the summons on 14th July 2025 was neither deliberate nor intentional but informed by circumstances outside his control. The non-attendance was occasioned by the breakdown in communication between the Corporation and its former Advocates, a fact that necessitated the appointment of a new advocate to come on record.
The Warrants of Arrest should be lifted in the interim and the matter scheduled for a show cause hearing to enable the Applicant herein appear and demonstrate to the court that the orders were overtaken by events.
Issuance of Warrants of Arrest and Committal to Civil Jail is an extreme form of execution that is difficult to remedy once the harm is done especially since the Petition is yet to be heard. The suit herein is entirely incompetent in form since it is premised on a contractual dispute and not a constitutional violation.
The Petitioner/Respondents submits the facts of the matter stem from ruling delivered on 25th June 2025, by Hon Justice Stephen Kibunja wherein he found Philip Mainga, the Managing Director of the Respondent, to have disobeyed the court order of 14th November 2023, that was confirmed on 9th October 2024, by continuing to deny the Petitioner access to the suit premises.
The judge ordered Philip Maingi to appear in court on 4th July 2025 to show cause. He did not appear in court hence warrants of arrest were issued against him to be executed by the Inspector General of Police.
The warrants of arrest were extracted on 28th August 2025 and served upon the Inspector General of Police on 16th September 2025 by the Petitioner's erstwhile advocate, Aboubakar Mwanakitina & Co. Advocates to seize and take into custody Mr. Philip Mainga.
On 7th October 2025 the Respondent's erstwhile Advocate, Mr. Brian Mbaabu, informed court that they were negotiating with the Petitioner to settle the matter and that the served warrant of arrest did not disclose the date when Mr. Philip Mainga was to appear in court.
Consequently, the Petitioner's current Advocate, prayed for the extension of the warrant of arrest as the previous warrant of arrest was erroneous and did not state the date when Mr. Philip Mainga was to be brought to court.
The extended warrant of arrest was re-issued on 21st October 2025 and served upon the Inspector General of police on 23rd October 2025 which stated that Mr. Philip Mainga was to be brought to court on 12th November 2025.
Mr. Philip Mainga failed to appear in court on 12th November 2025 and vide an order of the court issued on 2nd December 2025, summons were issued to the Inspector General of Police to come to court on 18th February 2026 and explain why the warrants issued on 21st October 2025 has not been executed.
Before that could happen, the Respondent filed the present application dated 14th January 2024 which is the subject of these submissions.
The Petitioner opposed the application vide Grounds of Opposition dated 20th January 2026.
The respondent submits that prayers (1), (2) and (3) are spent and overtaken by events. The only prayers remaining in the application are prayers (4), (5) and (6). According to the respondent, prayer (5) is not a specific. It does not specify what the Applicant wants. Prayer (6) is for costs. Costs follow the event. Effectively, the only substantive prayer that remains in the application is prayer (4). The import of prayer4 is that this Honourable Court be pleased to issue a date for the hearing of the Notice to Show Cause on an urgent and priority basis. According to the respondent, the above prayer cannot be granted. The notice to show cause which the prayer seeks a hearing date for was already heard by Justice Kibunja. The record of this court will show that after delivering his application on 25th June 2025 in which he found the Respondent's Managing Director (MD), Philip Mainga, to be in contempt of court, Justice Kibunja ordered as follows: The MD to be availed in court on 14.72025. Notice to be served by the Petitioner. "
The respondent submits that the purpose of the MD's attendance in court on 14th July 2025 was to show cause. He did not attend the court hence the Judge issued a warrant of arrest against him. The show cause was dispensed with on 14th July 2025 when the MD failed to turn up. There is no show cause hearing that is still pending and which the court can assign a hearing date for as sought in prayer (4) - which is the only substantive prayer in the application.
It would have been a different scenario if the Applicant had first sought an order to set aside the proceedings which had taken place in court and more particularly the proceedings of 14th July 2025 when the MD was required to appear in court to show cause and when Justice Kibunja issued warrants of arrest against him because he did not turn up in court.
Without a substantive prayer seeking to set aside the proceedings of 14th July 2025 and the warrants of arrest, the order seeking only a date for hearing of the notice to show cause cannot be granted because the notice to show cause has been heard and is no longer available to be assigned a hearing date. In fact, if the notice to show cause were still pending, one does not require the court to assign it a hearing date, it can easily be fixed for hearing in the registry. As it is, the Applicant has not applied to set aside the warrants of arrest but has only sought interim stay of the same to last until the application is heard and determined. After a ruling for the application is delivered, there will be nothing left and no further orders can be granted by the court. The matter will end with the ruling which must inevitably dismiss the application.
It is now clear that all prayers in the application are overtaken by events. Overtaken by events because prayers (1), (2) and (3) are interim ones which have already been granted by the court and will last until the determination of the application while prayer (4) cannot be granted because there is no pending notice to show cause that can be assigned a hearing date, Justice Kibunja having dispensed with the notice to show cause on 14th July 202. For the foregoing reasons alone, the respondent contends that the application has no prayer capable of being granted and must be dismissed.
The warrants of arrest were issued by Justice Kibunja on 14th July 2025. The application was filed on 14th January 2026 after 6 months. The delay of 6 months is inordinate. No explanation has been given for such a long delay.
The Applicant took the issue lightly and only came to court after the Inspector General of Police has been summoned. That is when it dawned on the Applicant that the matter is serious.
The Applicant states casually in the application that its Managing Director, Philip Mainga, failed to attend court because "breakdown in communication between the Corporation and its former Advocates." The nature of communication breakdown is not explained. The court record indicates that Mr. Mbaabu, the Applicant's Advocate was in court on 14th July 2025 when the MD was expected in court to show cause before warrants of arrest could be issued against him. On that day, Mr. Mbabu informed the court that there was a certain document that the Applicant wanted to file and that the MD would come to court after that document had been filed in court. The Applicant has not denied the information relayed to court on its behalf on 14th July 2025 by Mr. Mbaabu. There is no affidavit Mr. Mbaabu to indicate that what he communicated to court on that day were not instructions from the Applicant.
Analysis and Detrmination
I have considered the application and the grounds of opposition and the rival submissions and do find that the matter is scheduled for hearing on the 18th of February 2026 for the attendance of the inspector general of police to explain why he has failed to execute the warrants of arrest herein as issued by the court. The Inspector General just like the managing director of Kenya railways has failed to obey court orders.
The application herein is meant to preempt the coming to court by the inspector General to explain why he has failed to arrest the Managing Director Kenya Railways. I do find that the application before me is not merited because it seeks to assist the managing director Kenya railways to continue disrespecting court orders. The managing director Kenya Railways is Philip Mainga and not Stanley Gitari who has sworn the affidavit in support of the application. Mr Philip Mainga has not deponed any affidavit to explain why he has failed to attend court to show because why he should not be jailed for being in contempt of court order. I do not wish to use a lot of ink and paper on the issues herein and do order that the matter do proceed on 18th of February 2026 for notice to show cause why the inspector general Kenya Police Service has failed to arrest the Managing Director Kenya Railways, Mr Philip Mainga and bring him to court to show cause for contempt of Court. The notice to show cause against the managing director Kenya railways is still pending in court as the managing director did not attend court. The Inspector General is supposed to arrest the managing director and bring him to court. He can bring him to court on the 18th of February 2026 or attend and explain why he has failed to arrest the managing director and bring him to court. I do find no merit in the application and the same is dismissed with costs. The matter to be mentioned on 18th February 2026. The inspector General, Kenya Police Service to attend court and show cause why he has not obeyed the court order to arrest Mr Philip Mainga and bring him to court to answer the notice to show cause.