1.The Respondent filed a Notice to show cause application dated 15.4.2026 under order 22 rule 31 of the Civil Procedure Rules 2010 seeking for committal of of the Appellant to civil jail for non-payment of decretal costs of kshs 33500/=.in favor of Respondent.
2.The Application was opposed by the Appellant vide the affidavit dated 8.5.2026 who called for payment of the decretal sum by way of equal monthly instalments till payment in full.
3.The Appellant opposed the instalment proposal by the Appellant vide a replying affidavit dated 25.5.2026
4,The Notice to show cause and proposal for payment by monthly payment was disposed off by way of written submissions dated 16.6.2026 and 18.6.2026 respectively.
5.The Appellant’s case:
The Appellant deposed that he is a stone mason dependent on casual jobs as when available for survival save that he is represented by the learned counsels in this case and another matter in Taveta on a probono basis having been previously engaged by Mr Karanja in a construction transaction, It is the Appellant’s deposition that he resides at Chall Njukini area within the jurisdiction of the court having constructed a structure on the suit property as per the attached photographs marked Jkm-1, a fact which is within the knowledge of the respondent.
6.The Appellant further deposed that he has two children in secondary school and four other children are in different grades in primary school as per the annexed fees structure marked Jkm2 in support of his financial inability to pay the decretal costs in whole. He deposed further that his earnings are meagre hence has no bank account to annex.
7.The Appellant further deposed that he has neither refused , neglected to pay the costs , concealed nor removed any property of his out of the jurisdiction of the court but proposed a payment plan of kshs1000/= monthly to defray the decretal sum till payment in full.
8.The Appellant alluded to infringement of his constitutional right to liberty should he be committed to civil jail and urged the court to dismiss the application with costs save that his proposed payment plan be allowed in the interest of justice.
9.The Respondent’s case:
10.The Respondent deposed that the execution process is lawful as due process has been followed but opposed to proposed payment plan of kshs 33500/ in equal monthly instalments of kshs 1000/= till payment in full by Appellant vide his replying affidavit date 25.5.2026 averring that the Appellant is financially capable of defraying the decretal costs within reasonable time though he is amenable to payment of kshs 16,750/=.monthly till payment in full. Further that the proposed pay plan by Appellant is unreasonable and deliberately intended to frustrate the Respondent from enjoying the fruits of his judgment.
11.He contended that court orders must be obeyed as Appellant has been aware of decretal costs payable to Respondent effective 14.1.2026 citing the case of Republic versus Attorney General and Another(2004)eklr.
12.The Respondent urged the court to disallow the proposal by Appellant with costs but allow his application with costs too.
13.Analysis and determination:
Having considered the affidavit evidence , written submissions filed and cited cases on record the following issues arise for determination:
a) Whether the appellant should be committed to civil jail for non-payment of kshs 33,500/=in favour of Respondent.
b) Whether committal to civil jail of a judgment debtor is unconstitutional.
c) Whether a reasonable proposal for instalment payment has been offered by Appellant.
14.Whether the appellant should be committed to civil jail for non-payment of kshs 33,500/=in favour of respondent.
15.Committal to civil jail of a judgement debtor in execution of a decree is legally recognised under Order 22 rule 34 of the Civil Procedure Rules 2010 that provides as follows:
(1) Before making an order for the committal of the judgment-debtor to prison, the court, for reasons to be recorded in writing, shall be satisfied—
(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree—
(i) (ii) is likely to abscond or leave the local limits of the jurisdiction of the court; or has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed or removed any part of his property, or committed any other act of bad faith in relation to his property; or
(b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree, or some substantial part thereof, and refuses or neglects, or has refused or neglected, to pay the same, but in calculating such means there shall be left out of account any property which is exempt from attachment in execution of the decree; or
(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.
(2) While any of the matters mentioned in subrule (2) are being considered, the court may, in its discretion, order the judgment-debtor to be detained in prison, or leave him in the custody of an officer of the court, or release him on his furnishing security, to the satisfaction of the court, for his appearance when required by the court.
(3) A judgment-debtor released under this rule may be re- arrested.
(4) Where the court does not make an order under subrule (1), it shall cause the judgment-debtor to be arrested, if he has not already been arrested, and, subject to the provisions of this Act, commit him to prison.
16.Similarly, Section 38 of the Civil Procedure Act 2010 provides for powers of the court to enforce execution as follows :
Subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree-holder, order execution of the decree—
(a)by delivery of any property specifically decreed.
(b)by attachment and sale, or by sale without attachment, of any property.
(c)by attachment of debts.
(d)by arrest and detention in prison of any person.
(e)by appointing a receiver;
Or
(f)in such other manner as the nature of the relief granted may require.
Provided that where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the court, for reasons to be recorded in writing, is satisfied that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree—
(i)is likely to abscond or leave the local limits of the jurisdiction of the court;
(ii)has after the institution of the suit in which the decree was passed, dishonestly transferred, concealed or removed any part of his property, or committed any other act of bad faith in relation to his property;
(b)he judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree, or some substantial part thereof, and refuses or neglects, or has refused or neglected, to pay the same, but in calculating such means there shall be left out of account any property which, by or under any law, or custom having the force of law, for the time being in force, is exempt from attachment in execution of the decree;
(c) the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.
17.It is trite that for an application to commit A judgement debtor to civil jail to succeed, the Judgement creditor has to satisfy the court of financial reasonableness of a judgement debtor to pay the decretal costs though the judgement debtor has deliberately neglected and/or refused to pay the decretal costs in favour of judgment creditor and/or has removed any part of his property or committed any other act of bad faith in relation to the property as restated in the case of Ahmed Omar Swadan vs Fredrick Ndambuki Mutisya(2022)eklr and Njoroge vs Kigo(2023)eklr .
18.The Appellant averred that the Respondent failed to establish his financial reasonableness to defray the decretal sum in his favour at ago vide affidavit dated 8.5.2026 at paragraph 7 thereof where he deposed that he lives from hand to mouth hence has no bank account which has not been controverted by the Respondent. He further deposed that his financial inability is known by the Respondent since he resides on the disputed land which fact could only be disputed by the Respondent but not his Advocate. The Appellant annexed photographs of structures of a semi-permanent house and school fee structures for his children in arrears vide the affidavit dated 8.5.2026 in support of his financial inability to pay up the decretal sum at once which has not been controverted by the Respondent. He who alleges a fact proves as rightly submitted by the learned counsels in the written submissions on record pursuant to section 107 and 109 of Evidence Act. The evidentiary burden of rebutting financial reasonableness by the Appellant to defray the decretal sum at ago rests on the Appellant. There is no evidence placed before this honourable court by the Respondent disproving financial inability of the Appellant apart from the averment that the Appellant has been represented by an Advocate of the High Court of Kenya who contracted his services and constructed a structure for him and Masons construct houses which are less than kshs 30000/= inclusive of one roomed house. On a balance of probabilities, I find the explanation presented by Appellant regarding his financial inability to defray the decretal costs at ago as honest. Similarly, it is evident on record that no evidence has been placed before the court by the Respondent to prove that the Appellant has removed his property(ies) out of the jurisdiction of the court, sold part of his properties to frustrate realisation of the decretal sum in favour of the respondent. In a nutshell the respondent has not established the financial reasonableness of the Appellant to defray the decretal costs at ago to warrant his committal to civil jail at the moment.
19. whether committal to civil jail for failing to pay a debt is unconstitutional:
20.The Appellant in his written submission dated 17.6.2026 deposed that his constitutional right to liberty shall be violated if committed to civil jail by the respondent. The Respondent averred that the right to liberty is limited in justifiable circumstance as restated in the case of Beatrice Wanjiku [2012) eklr where the court held that Civil jail is a lawful limitation of liberty where due process is followed.
Article 25 of the constitution of Kenya 2010 provides for the fundamental rights and freedoms that may not be limited being:
a)The right to a fair trial,
b)an order of harbeas corpus ,
c)freedom from slavery or servitude,
d)freedom from torture and cruel inhuman or degrading treatment or servitude.
21.It is trite that committal to civil jail of a judgement debtor who fails to pay the decretal sum in favour of the judgment creditor is a last resort measure where due process is followed vis avis consideration of each case on its own merit as restated in the case of Charles Lutta Kasamani Vs Concord Insurance Co Ltd & Deputy Registrar Milimani High Court Commercial and Admiralty Division [2018]eklr .
22.The decree emanates from the judgment of the court dated 14.1.2026 in favour of the respondent. The Appellant was accorded an opportunity to be heard upon being served with the notice to show cause for his committal to civil jail for failing to pay kshs 33,500// to the Respondent vide the affidavit dated 8.5.2026 in compliance with section 38 of the Civil Procedure Act,2010. The Respondent followed due process of the law hence find that the notice to show cause dated 15.4.2026 does not amount to violation of the constitutional right of Appellant by the Respondent.
23.Whether a reasonable proposal for instalment payment has been offered by Appellant.
Order 21 rule 12(2)of the civil procedure rules 2010 provides for Payment of decretal sum by instalment as follows:
(1) Where and in so far as a decree is for the payment of money, the court may for any sufficient reason at the time of passing the decree order that payment of the amount decreed shall be postponed or shall be made by instalments, with or without interest, notwithstanding anything contained in the contract under which the money is payable.
(2)After passing of any such judgment or decree, the court may on the application of the judgment-debtor and with the consent of the decree-holder or without the consent of the decree-holder for sufficient cause shown, order that the payment of the amount decreed be postponed or be made by instalments on such terms as to the payment of interest, the attachment of the property of the judgment-debtor or the taking of security from him, or otherwise, as it thinks fit.
24.The Appellant admitted his indebtedness to the respondent to the tune of kshs 33,500/= and expressed his interest to offset the same in equal monthly instalments of kshs 1000/= till payment in full. It is evident on the face of affidavit evidence and written submissions filed by the Appellant and Respondent’s learned counsels that the parties embrace payment of decretal sum by way of monthly instalments save for the proposed payment plan which is opposed by the respondent citing financial reasonableness of the Appellant and deliberate refusal to pay the decretal sum at ago.
25.It is trite that in considering an application for payment of money decree by way of instalments the judgement debtor has to satisfy the conditions as set out in the case of Raja Bali Alidina v Remtulla Alidina & Another [1961] EA 565 as quoted in Nicholas Gitonga Murongi v Susan Wairimu & 4 Others (2021)eklr being :
i) The circumstances under which the debt was contracted.
ii)The conduct of the debtor.
iii)His financial position.
iv)His bona-fides in offering to pay a fair proportion of the debt at once.
26.It is on record that the Appellant’s appeal was dismissed on14.1.2026 with costs of kshs 30000/ to the Respondent hence the debt payable by the Appellant to the Respondent.
27.On account of conduct of the Appellant , the proposal to settle the decretal costs by monthly instalments of kshs 1000/= till payment in full was placed before this honourable court for the first time vide the Appellant’s sworn affidavit dated 8.5.2026 though the application would have been formally made under order 22 rule 12 of civil procedure rules 2010 . Prior to 15.4.2026 the Appellant was mute on payment of the decretal costs which was occasioned by financial inability of the appellant already determined on record.
28.Regarding bonafides in offering to pay a fair proportion of the debt at once of the Appellant , the judgement creditor’s right to enjoy the fruits of his judgement has to be taken into consideration despite the financial inability of the Appellant to defray the decretal costs at ago .The judgement debtor/Appellant is duty bound to offer a reasonable proposal to assist the court in determining a reasonable sum payable to the judgment creditor /Appellant having been guided by the case of Diamond Star General Trading llc Vs Ambrose DO Rachier carrying on business as Rachier & Amolo Advocates(2018)eklr. The Respondent and Appellant are entitled to a fair administrative action when enforcing the decree in favour of the Respondent considering article 48 ,50 and 159 of the constitution of Kenya 2010. I have considered the proposed payment plan offered by Appellant of 34 months from the date of the ruling of the court which proposal I find as unreasonable hence disallowed.
29.Order 22 rule 12(2) of the civil procedure rules 2010 clothes courts of law with discretion to allow instalment payments on terms which are reasonable and just. The court notes with humility to the parties that this is a matter where the parties would have resorted to a mutual modest payment plan in the spirit of promoting alternative dispute resolution pursuant to article 159 of the constitution of Kenya 2010 . The Respondent would have not been dragged to court to execute for the decretal costs had the Appellant embraced out of court settlement immediately after pronouncement of the judgement against him. None the less having considered the entire evidence on record I find the application to commit the judgment debtor to civil jail for non-payment of kshs 33,500/= as drastic at this juncture though recognized in law hence disallowed. In the alternative I exercise the discretion bestowed upon this court in accord with order 22 rule12(2) of the civil procedure rules 2010 to allow the Appellant pay the decretal sum of kshs 33500/=in favour of Appellant by way of three-equal monthly instalments of kshs11,166.00 effective 1.8.2026 and on the 1st day of the subsequent months until payment in full.
30.Costs follow events in terms of section 27 of the civil procedure Act ,2010 though its award is a discretion of the court .The Appellant was aware of the debt due and payable to the Respondent effective 14.1.2026 but demonstrated no steps taken to defray the debt prior to 15.4.2026.The proposal to defray the decretal sum by instalments was made after the respondent had moved the court to have him committed to civil jail. The Appellant is liable to pay the costs incurred by the Respondent in taking out the notice to show cause application and any attendant costs to responding to his proposed pay plan dated 12.5.2026.
31.Disposition :
Having analyzed the affidavit evidence and reasons stated on record , I make the following orders:
a) The Application to commit the Appellant to civil jail is declined.
b) The Appellant’s application to pay the decretal sum of kshs 33500/=in favour of Respondent is allowed payable by way of three-equal monthly instalments of kshs11,166.00 effective 1.8.2026 and on the 1st day of the subsequent months until payment in full.
c)In default of payment of any of the instalments above, the Respondent is at liberty to execute the decree against the Appellant.
d)Costs of kshs 8100.00 awarded to the Respondent.
Delivered, dated and signed in open court at Voi This 2.7.2026 in the presence of :
Mr Mwinzi for the Respondent
Mr letisia Court Assistant
But absence of the Appellant and Otunga Karanja & Associates.
By J. A. Orwa
Judge
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