The ruling herein relates to the Notice of Preliminary Objections filed by the respondent, Harbo Group of Companies Limited, dated 27 August 2025. The basis of the objections:
- the Notice to Show Cause herein is defective and does not comply with the mandatory provisions under Order 22 rule 18 of the Civil Procedure Rules,
- the reliefs sought in the Notice to Show Cause herein do not conform to nor reflect the jurisdiction of the court pursuant to Order 22, Rule 18 of the Civil Procedure Rules.
- The court can only commit a party to civil jail under Order 22 Rule 31 of the Civil Procedure Rules, which is contra distinguishable from Order 22 Rule 18 in the object and remedial relief.
- The court lacks jurisdiction to entertain the Notice to Show Cause herein as drawn.
Parties attended court on 29 September 2025 and agreed to address the objections by written submission. The matter was allotted a mention date on 13 October 2025 to confirm compliance.
Only the claimant filed written submissions.
Th claimant submitted that the objections by the respondent are an abuse of the court process. Reliance on Order 22 rule 18 and 38 of the Civil Procedure Rules is invoked without reasonable cause to delay the execution proceedings commenced by the claimant.
The claim submitted that Order 22 Rule 18 allows for execution upon an application through notice to the person against whom execution is applied and requiring him to show cause why the decree should not be executed against him. The mandatory requirement under Order 22 rule 18 is that in the event an application for execution is made more than a year from the date of the decree, a Notice to Show Cause why the decree should not be executed should first be issued against the person for whom execution is applied as held in the case of EON Energy Limited v Desnol Investment Limited [2025] KEHC.
The claimant submitted that section 38 of the Civil Procedure Act allows an applicant to apply to the court to have the decree-holder execute against the judgment-debtor by way of arrest and detention in prison on terms permitted by the court. The court has the requisite jurisdiction to execute the decree herein by committing the directors of he respondent to civil jail under section 38 of that Act.
The objections by the respondent have no basis and should be dismissed with costs.
Determination
As outlined above, the respondent, despite moving the court under the Notice of Preliminary Objections, did not file any written submissions.
The application of Order 22 rule 13, 18 and 31 of the Civil Procedure Rules, which are alleged to deny the court jurisdiction, has not been addressed to assist the court in any material way.
As correctly submitted by the claimant, under Order 22 Rule 18 of the Civil Procedure Rules, an applicant and decree-holder is allowed to move the court through notice to the judgment-debtor, requiring him/her to show cause why the decree should not be executed against him. Under Rule 73 of the Employment and Labour Relations Court (Procedure) Rules, the court is allowed to apply the execution provisions and proceedings under the Civil Procedure Act and the Rules thereto.
Upon being moved by an applicant under Order 22 rule 18, the court has the requisite jurisdiction and power to issue notice to show cause and require the respondent to attend and address as necessary. In Kenya Kariba Farmers Co. Ltd v Kwiyunira Farmers Co. Ltd; Gachanja & 9 others (Applicant) [2025] KEHC 14087 (KLR) and the case of Getama & another v Maroa (Suing as the Legal Representative of the Estate of Babere Ikwabe) [2025] KEELC 6750 (KLR), the court held that a show cause notice issued under Order 22 rule 18 is proper and lawful.
With regard to the invocation of section 38 of the Civil Procedure Act, A person is not liable to be committed to civil jail for inability to pay a debt but a dishonest and fraudulent debtor is liable to be punished by way of arrest and committal as held in Solomon Muriithi Gitandu & another v Jared Maingi Mburu [2017] KEHC 4651 (KLR).
In this regard, the court in Braeburn Limited v Tony Gachoka & another [2009] eKLR emphasized that;
Section 38 of the Civil Procedure Act however, provides a limitation of the courts’ power to order execution of a decree by way of detention in prison. The section prohibits the court from making an order of execution of any decree for the payment of money unless the judgment-debtor has first been given an opportunity of showing cause why he should not be committed to prison and even where the judgment debtor has been given such notice to show cause, the court must itself be satisfied and give reasons in writing for that:
These limitations are further re-stated under Order 22 rule 31 (1) Civil Procedure Rules. A notice to show cause may be issued requiring the judgment debtor to appear, and if he fails to do so, a warrant of arrest is issued.
The requirement for Notice to Show Cause is mandatory and whether the judgment appears for notice to show cause or under warrant of arrest, it is the duty of the decree holder to satisfy the court that the judgment debtor is not suffering from poverty, or any other sufficient cause and can pay the decretal sum or proof the provisions of Order 22 rule 35 Civil Procedure Rules, that is examination of the debtor as to his property.
In this case, the motions of Order 22 rule 18 have been addressed, and the Notice to Show Cause, now challenged by the respondent, has been issued.
The court is clothed with the requisite jurisdiction to proceed as moved by the claimant. The objections by the respondent dated 27 August 2025, considering the court ruling on 30 June 2025 and the subsequent refusal to attend and address the objections, are a sheer abuse of the court process.
Objections dated 27 August 2025 are hereby dismissed. Costs to the claimant.
Delivered in open court at Mombasa, this 23rd day of October 2025.
M. MBARŨ
JUDGE
In the presence of:
Court Assistant: Japhet
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