1. Vide a notice of motion dated 25/3/2025 and filed under Order 42 Rule 6, Order 22 Rules 32 and 33, Order 51 Rule1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, the Applicant prayed for the following orders:
“ 1. Spent.
2. Spent.
3. This Honourable Court be pleased to issue orders staying execution of decree of the Small Claims Court issued on 22nd December, 2023 pending the hearing and determination of the Appeal in HCCA/E160/2024.
4. Spent.
5. This Honourable Court be pleased to issue an order of stay of proceedings before the Small Claims Court pending the hearing and determination of the Appeal herein.
6. This Honourable Court pleased to issue an order staying, vacating and/or setting aside the warrant of arrest issued by the Small Claims Court on 23rd October, 2024 pending the hearing and determination of both the instant Application and the Appeal herein.
7. This Honourable Court be pleased to issue an order of release of the Appellant/Applicant pending the hearing and determination of both the instant Application and the Appeal herein.
8. This Honourable Court be pleased to issue an order directing the Officer in Charge of Industrial Area Remand Prison to release forthwith the Applicant herein.
9. This Honourable Court be pleased to issue any further orders and directions as it may deem fit and expedient to grant.
10. The costs of this application be in the cause.”
2. The application was based on the grounds that the Applicant had been arrested on 5/3/2025 pursuant to a warrant issued by the small claims court in Milimani SCCCOMM/E4743/2023 and had remained in detention for 20 days.
3. It was contended that the Applicant had been unlawfully committed to jail without a clear and unequivocal court decision, thereby infringing his civil liberties and that the continued detention, notwithstanding the pending appeal, had deprived him, as a businessman, of the opportunity to earn income to meet any potential obligations arising from the appeal.
4. It was further alleged that his constitutional rights, including the right to liberty, life, freedom of association, family life and general livelihood, had been violated. The Respondents were said to stand to suffer no prejudice if the orders sought were granted, while failure to grant the same would result in irreparable loss, continued violation of constitutional rights and render the appeal nugatory.
5. Gideon Kiluma Musimba, a director of the Respondent, swore a replying affidavit on 28/3/2025 in opposition to the Applicant’s application dated 25/3/2025.
6. He stated that the application was bad in law and an abuse of the court process as there were two concurrent matters involving the same subject: a small claims suit in Milimani and a civil appeal filed by the Applicant following judgment in the small claims court.
7. He deponed that the Applicant had fully participated in the small claims proceedings through counsel and that judgment was delivered on 22nd December 2023, ordering the Applicant to pay Kshs 950,000 plus interest and costs. The Applicant appealed and also sought a stay of execution, which was compromised by a consent requiring deposit of the decretal sum in a joint account pending appeal.
8. Despite efforts to open the joint account, the Applicant failed and refused to comply with the consent orders or deposit any amount.
9. As a result of non-compliance, the Respondent applied for notice to show cause, and upon failure by the Applicant to justify his default, warrants of arrest were issued. The Applicant was eventually arrested and, having failed to make any payment proposal, was lawfully committed to civil jail for thirty days.
10. The Respondent contended that the Applicant had shown no willingness to comply with court orders and had not paid any part of the decretal sum since judgment.
11. It was therefore asserted that the Applicant was lawfully in custody, the application was incapable of enforcement, lacked merit, and should be dismissed with costs for being an abuse of the court process.
Analysis and determination.
12. At the time of writing this ruling, the Respondent had filed written submissions dated 9/4/2025, while the Applicant had not filed any submissions. I have considered the same together with the pleadings and evidence as filed by the parties.
13. A background of this dispute is that the Small Claims Court in SCCOM E4743/2023 delivered a judgement on 22/12/2023 against the Applicant herein ordering him to pay the Respondent the sum of Kshs.950,000/- plus interest and costs. A copy of the lower court’s decree was produced as ‘GKM2’ in the Respondent’s replying affidavit.
14. Dissatisfied with the judgement, the Applicant herein lodged an appeal against it in Civil Appeal Number E160/2024. A copy of the memorandum of appeal was annexed as ‘GKM3’ to the replying affidavit of the Respondent.
15. The parties entered into a consent whereby the Applicant agreed to deposit the decretal sum in a joint account in order to obtain a stay of execution pending appeal. It appears that the Applicant did not adhere to the consent terms which led the Respondent to apply for a notice to show cause why the Applicant should not be arrested and committed to civil jail for failing to pay the decretal sum. A copy of the consent and the notice to show cause were produced as ‘GKM6’ in the Respondent’s replying affidavit.
16. A warrant of arrest was eventually issued by the lower court in execution of the decree, and the Applicant now approached this court vide a miscellaneous application seeking a myriad of prayers.
17. The Applicant sought a prayer to stay the execution of the decree of the lower court issued on 22/12/2023 pending the determination of HCCA E160/2024.
18. It is perplexing that counsel for the Applicant sought these orders in this matter while being aware that an appeal against the impugned judgment is currently active in another court.
19. Section 6 of the Civil Procedure Act states:
“ No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceedings between the same parties or between parties under whom they or any of them claim litigating under the same title, where such suit or proceedings is pending in the same court or any other court having jurisdiction in Kenya to grant the relief claimed.”
20. This court is barred by the principle of sub judice under section 6 above, from determining any matter that is substantially in issue between the same parties before another court. As indicated in the memorandum of appeal produced in the Respondent’s replying affidavit, the Applicant filed an appeal, that is, HCCA E160/2024, against the judgement of the lower court. It would therefore be prudent for the instant application to be filed in that case and not in this miscellaneous cause.
21. The Supreme Court in Kenya National Commission on Human Rights v AG & IEBC & 16 Others [2020] eKLR emphasized that the purpose of sub judice is to prevent multiplicity of suits and conflicting decisions. The present miscellaneous application, filed parallel to the appeal, risks undermining that principle. I am persuaded that to the extent the application seeks stay of execution and stay of proceedings, those prayers properly lie within the appeal file and not in a miscellaneous cause. This application is therefore procedurally defective and amounts to forum shopping.
22. In any case, a stay of execution of the decree of the lower court could not be issued as the Applicant had already been arrested in execution of the decree. Order 42 Rule 6 requires an applicant to demonstrate substantial loss, file the application without delay, and provide security. The Applicant has emphasized violation of liberty and livelihood. However, the record shows that parties recorded a consent requiring deposit of the decretal sum in a joint account pending appeal, which the Applicant failed to honour. Equity aids the vigilant, not the indolent. Having defaulted on a consent order, the Applicant cannot now seek equitable relief without first purging his default.
23. Finally, the Applicant contends that his detention is without a clear committal order. The Respondent has annexed the Notice to Show Cause and warrants of arrest issued on 23 October 2024, culminating in committal for thirty days. Civil jail remains a lawful mode of execution under Order 22 Rules 32 and 33 of the Civil Procedure Rules, subject to constitutional safeguards. The record demonstrates that the Applicant was heard and failed to offer any proposal for settlement. His committal was therefore not irregular.
24. In the result, I find the application dated 25 March 2025 to be devoid of merit. It is dismissed. Costs are awarded to the Respondent, assessed at Kshs 50,000/=.
25. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
18TH DECEMBER 2025
ADO MOSES
JUDGE
“ 1. Spent.
2. Spent.
3. This Honourable Court be pleased to issue orders staying execution of decree of the Small Claims Court issued on 22nd December, 2023 pending the hearing and determination of the Appeal in HCCA/E160/2024.
4. Spent.
5. This Honourable Court be pleased to issue an order of stay of proceedings before the Small Claims Court pending the hearing and determination of the Appeal herein.
6. This Honourable Court pleased to issue an order staying, vacating and/or setting aside the warrant of arrest issued by the Small Claims Court on 23rd October, 2024 pending the hearing and determination of both the instant Application and the Appeal herein.
7. This Honourable Court be pleased to issue an order of release of the Appellant/Applicant pending the hearing and determination of both the instant Application and the Appeal herein.
8. This Honourable Court be pleased to issue an order directing the Officer in Charge of Industrial Area Remand Prison to release forthwith the Applicant herein.
9. This Honourable Court be pleased to issue any further orders and directions as it may deem fit and expedient to grant.
10. The costs of this application be in the cause.”
2. The application was based on the grounds that the Applicant had been arrested on 5/3/2025 pursuant to a warrant issued by the small claims court in Milimani SCCCOMM/E4743/2023 and had remained in detention for 20 days.
3. It was contended that the Applicant had been unlawfully committed to jail without a clear and unequivocal court decision, thereby infringing his civil liberties and that the continued detention, notwithstanding the pending appeal, had deprived him, as a businessman, of the opportunity to earn income to meet any potential obligations arising from the appeal.
4. It was further alleged that his constitutional rights, including the right to liberty, life, freedom of association, family life and general livelihood, had been violated. The Respondents were said to stand to suffer no prejudice if the orders sought were granted, while failure to grant the same would result in irreparable loss, continued violation of constitutional rights and render the appeal nugatory.
5. Gideon Kiluma Musimba, a director of the Respondent, swore a replying affidavit on 28/3/2025 in opposition to the Applicant’s application dated 25/3/2025.
6. He stated that the application was bad in law and an abuse of the court process as there were two concurrent matters involving the same subject: a small claims suit in Milimani and a civil appeal filed by the Applicant following judgment in the small claims court.
7. He deponed that the Applicant had fully participated in the small claims proceedings through counsel and that judgment was delivered on 22nd December 2023, ordering the Applicant to pay Kshs 950,000 plus interest and costs. The Applicant appealed and also sought a stay of execution, which was compromised by a consent requiring deposit of the decretal sum in a joint account pending appeal.
8. Despite efforts to open the joint account, the Applicant failed and refused to comply with the consent orders or deposit any amount.
9. As a result of non-compliance, the Respondent applied for notice to show cause, and upon failure by the Applicant to justify his default, warrants of arrest were issued. The Applicant was eventually arrested and, having failed to make any payment proposal, was lawfully committed to civil jail for thirty days.
10. The Respondent contended that the Applicant had shown no willingness to comply with court orders and had not paid any part of the decretal sum since judgment.
11. It was therefore asserted that the Applicant was lawfully in custody, the application was incapable of enforcement, lacked merit, and should be dismissed with costs for being an abuse of the court process.
Analysis and determination.
12. At the time of writing this ruling, the Respondent had filed written submissions dated 9/4/2025, while the Applicant had not filed any submissions. I have considered the same together with the pleadings and evidence as filed by the parties.
13. A background of this dispute is that the Small Claims Court in SCCOM E4743/2023 delivered a judgement on 22/12/2023 against the Applicant herein ordering him to pay the Respondent the sum of Kshs.950,000/- plus interest and costs. A copy of the lower court’s decree was produced as ‘GKM2’ in the Respondent’s replying affidavit.
14. Dissatisfied with the judgement, the Applicant herein lodged an appeal against it in Civil Appeal Number E160/2024. A copy of the memorandum of appeal was annexed as ‘GKM3’ to the replying affidavit of the Respondent.
15. The parties entered into a consent whereby the Applicant agreed to deposit the decretal sum in a joint account in order to obtain a stay of execution pending appeal. It appears that the Applicant did not adhere to the consent terms which led the Respondent to apply for a notice to show cause why the Applicant should not be arrested and committed to civil jail for failing to pay the decretal sum. A copy of the consent and the notice to show cause were produced as ‘GKM6’ in the Respondent’s replying affidavit.
16. A warrant of arrest was eventually issued by the lower court in execution of the decree, and the Applicant now approached this court vide a miscellaneous application seeking a myriad of prayers.
17. The Applicant sought a prayer to stay the execution of the decree of the lower court issued on 22/12/2023 pending the determination of HCCA E160/2024.
18. It is perplexing that counsel for the Applicant sought these orders in this matter while being aware that an appeal against the impugned judgment is currently active in another court.
19. Section 6 of the Civil Procedure Act states:
“ No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceedings between the same parties or between parties under whom they or any of them claim litigating under the same title, where such suit or proceedings is pending in the same court or any other court having jurisdiction in Kenya to grant the relief claimed.”
20. This court is barred by the principle of sub judice under section 6 above, from determining any matter that is substantially in issue between the same parties before another court. As indicated in the memorandum of appeal produced in the Respondent’s replying affidavit, the Applicant filed an appeal, that is, HCCA E160/2024, against the judgement of the lower court. It would therefore be prudent for the instant application to be filed in that case and not in this miscellaneous cause.
21. The Supreme Court in Kenya National Commission on Human Rights v AG & IEBC & 16 Others [2020] eKLR emphasized that the purpose of sub judice is to prevent multiplicity of suits and conflicting decisions. The present miscellaneous application, filed parallel to the appeal, risks undermining that principle. I am persuaded that to the extent the application seeks stay of execution and stay of proceedings, those prayers properly lie within the appeal file and not in a miscellaneous cause. This application is therefore procedurally defective and amounts to forum shopping.
22. In any case, a stay of execution of the decree of the lower court could not be issued as the Applicant had already been arrested in execution of the decree. Order 42 Rule 6 requires an applicant to demonstrate substantial loss, file the application without delay, and provide security. The Applicant has emphasized violation of liberty and livelihood. However, the record shows that parties recorded a consent requiring deposit of the decretal sum in a joint account pending appeal, which the Applicant failed to honour. Equity aids the vigilant, not the indolent. Having defaulted on a consent order, the Applicant cannot now seek equitable relief without first purging his default.
23. Finally, the Applicant contends that his detention is without a clear committal order. The Respondent has annexed the Notice to Show Cause and warrants of arrest issued on 23 October 2024, culminating in committal for thirty days. Civil jail remains a lawful mode of execution under Order 22 Rules 32 and 33 of the Civil Procedure Rules, subject to constitutional safeguards. The record demonstrates that the Applicant was heard and failed to offer any proposal for settlement. His committal was therefore not irregular.
24. In the result, I find the application dated 25 March 2025 to be devoid of merit. It is dismissed. Costs are awarded to the Respondent, assessed at Kshs 50,000/=.
25. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
18TH DECEMBER 2025
ADO MOSES
JUDGE