REPUBLIC OF KENYA
IN THE HIGH COURT AT MAKUENI
CIVIL SUIT NO. 2 OF 2018
SPANISH COACH EXPRESS LTD………..……PLAINTIFF/RESPONDENT
-VERSUS-
CHARLES NYAMWEYA MARUBE …………....DEFENDANT/APPLICANT
RULING
1. T he Application for determination is dated 31/10/2025 and was filed under certificate of urgency. It is brought under Order 45 Rule 1, 22, 34(2) of the Civil Procedure Rules 2010, Sections 80 (a) & (b), 38, 3A of the Civil Procedure Act, Article 159 of the Constitution of Kenya and all other enabling provisions of the law. It seeks the following orders;
a) Spent.
b) Spent
c) THAT pending the hearing and determination of prayers 4 and 5 herein, there be a stay of execution of warrants of arrest issued by this honorable court on 05/06/2024 and any other consequential orders that will lead to the arrest of the Applicant.
d) THAT the ruling and orders of the court made on 05/06/2024 be reviewed and varied.
e) THAT the warrants of arrest and committal to civil jail be stayed.
f) THAT the costs of this application be provided for.
2. The Application is supported by the grounds on its face and the by the affidavit of Charles Nyamweya Marube sworn on the same day. He deponed that he is the judgment debtor and well versed with the matters pertaining to this suit. That, the suit was instituted in 2018 due to an accident that involved his motor vehicle. That, the matter was purely handled by the insurance and he was not aware of the outcome.
3. That, in the year 2025, he realized that he was needed in court sometime in 2023 to show cause as to why he should not be committed to civil jail for not paying kshs seventeen million, one hundred and six thousand, two hundred and ninety (17, 106, 290/=). That, he instructed a firm of advocates to represent him in the matter but they did not lay bare his financial position as regards satisfying the decree herein hence this Application.
4. He deponed that he has not refused, denied to meet or satisfy the requirement of the decree but is financially unable to meet the requirements of the decree. That, the decree holder searched all about him and discovered that he has no property to attach and satisfy the decree hence the reason he has taken the route of civil jail as a mode of execution. That, the amount in question of Ksh.17,106,290/= is a colossal sum of money that cannot easily be available for payment to satisfy the decree. That, he prays for suspension of the warrants of arrest as he is unable to meet the requirements to satisfy the decree at the moment.
5. That the act that gave rise to the suit was purely an act of God though he was blamed as the owner of the vehicle and it is on that basis that he requests the court to review and set aside the warrants of arrest.
6. The Application was opposed through grounds of opposition dated 18/11/2025 and Replying Affidavit sworn by the legal affairs Manager of the M/S Heritage Insurance Company Ltd. The insurer and of the plaintiff/decree holder. Gibson Maina Kamau on 19/11/2025. The grounds of opposition are;
a) The Application is an abuse of the court process as it seeks relief from a threat that no longer exists and against a process that has been conclusively completed.
b) The Application is spent, overtaken by events and rendered moot. The warrants of arrest, which form the sole subject of the Application, were executed in full when the Defendant/Applicant was arrested and brought before this honorable court.
c) The Application offends the provision of Order 45 Rule 1 of the Civil Procedure Rules, 2010.
d) The Application is otherwise frivolous, vexatious and discloses no reasonable cause of action against the Plaintiff.
7. That the insurers of the decree-holder are the ultimate beneficiaries of this case under the doctrine of subrogation.
8. That, he is aware that the Defendant filed Kisii HCCOMMIN No. E001 of 2024: Charles Nyamweya Marube -vs- Spanish Coach Express where he was granted stay of execution on 11/12/2024 pending the hearing and determination of the stay Application. The court order is exhibited as GMK 1. That a ruling was delivered on 22/10/2025 wherein the Application was struck out. A copy of the ruling is exhibited as GMK 2.
9. That, since the delivery of the ruling, the Plaintiff has not yet commenced the process of execution against the Defendant. That, no application for the issuance of a warrant of arrest has been made by the Plaintiff and consequently, no such warrants have been applied for, issued or are pending.
10. That, after issuance of warrants of arrest on 05/06/2024, the Defendant was arrested on 11/07/2024 and brought before this court virtually for hearing of the application for a committal order. That, the Plaintiff’s Advocates sought committal of the Defendant to civil jail on account of the following reasons;
a) Judgment was entered on 11/10/2019 and five years later, the judgment-debtor has not paid the decretal sum which currently is kshs 17,109, 210.59 as per the arrest warrants.
b) As per the investigation report dated 19/12/2016 by Messrs Windscope Loss Asessors, the Defendant owned a house in Akiba Estate Nairobi-Title No. Nairobi/Block 72/1088-which is capable of discharging the judgment sum.
c) In an attempt to evade judgment of the honorable court, the Defendant transferred the property to his wife/daughter-Rodah Moraa Nyamweya .
11. He deponed that on the said date, the Defendant’s counsel requested that the Defendant be released on account of his bad health and be allowed to come up with a payment plan whereupon this court issued the following orders;
a) That the Defendant to remain in the custody of the OCS Nyatieko police station however due to his medical condition, the OCS can release him to go home but will be in custody.
b) That the committal hearing to proceed tomorrow, the 12 th July 2024 at 9.00am virtually.
c) That the Defendant to avail the medical reports.
d) That the treatment notes to be uploaded onto the judiciary portal or emailed to Deputy Registrar of the High Court Makueni.
12. He deponed that when the matter came up in court on 12/07/2024, the Defendant was presented virtually from Nyatieko Police station and the Deputy Registrar issued the following orders;
a) That the Notice to Show Cause on committal to civil jail will be heard on the 17 th July 2024 before the Deputy Registrar.
b) That the judgment-debtor shall remain under the custody of the OCS Nyatieko Police Station however due to his ill health he shall be released on his own cognizance with the OCS to ensure he is presented physically to Makueni Law Courts on the said date.
c) That the warrants of attachment are extended until then .
13. He deponed that upon the Defendant’s appearance before the court during the committal proceedings, the warrants of arrest ceased to remain in force, the same having been executed by virtue of the Defendant’s arrest and production before the court. That, the Defendant’s assertion, that the warrants of arrest issued on 05/06/2024 are still in place, is factually incorrect and misleading to this court. That, the ‘imminent danger of arrest’ is mere fiction created by the Defendant.
14. He deponed that in the absence of any commenced execution process or any issued warrant of arrest, the Defendant’s Application is fundamentally flawed, pre-mature and a non-starter. The Applicant is essentially seeking to restrain an action that has not been taken and a threat that does not exist. That, the Application is an abuse of court process as it seeks to stay a non-existent threat.
15. Directions were given that the Application be canvassed through written submissions but the Respondent waived his right to file submissions on the ground that the Replying Affidavit is detailed enough.
The defendant / Applicant’s Submissions
16. The issues for determination were stated to be;
a) Whether the Notice of Motion is proper, timely and not an abuse of court process.
b) Whether the warrants of arrest and threatened committal to civil jail comply with section 38 of the Civil Procedure Act and Order 22 Rule 34 of the Civil Procedure Rules.
c) Whether the Plaintiff has proved that the Defendant has the means to pay and has willfully refused to do so including the allegation of fraudulent transfer of property.
d) Whether the circumstances warrant a stay of execution pending a proper inquiry by the court .
17. As to whether the Application is an abuse of court process, it was submitted that the Defendant is not challenging the existence of the decree but is challenging the manner of execution: the lawfulness, proportionality and procedural regularity of the mode of execution. It is submitted that his is a legitimate invocation of this court’s supervisory, statutory and inherent jurisdiction to ensure that execution proceedings comply with the law and relies on the case of Pan African Credit Finance Ltd -vs- Hellen Chebet Koech [2011] eKLR where the court emphasized that;
“The court may at any time after the presentation of a bankruptcy petition, stay an action, execution or other legal process against the property or person of the debtor and any court in which proceedings are pending against the debtor may, on proof that a bankruptcy petition has been presented by or against the debtor, either stay the proceedings or allows them to continue on such terms as it may think just.”
18. As to whether the warrants comply with the relevant law, the appellant relied on t section 38 of the Civil Procedure Act for the submission that committal to civil jail is permitted only after the court has conducted an inquiry on the judgment debtor. That, the proviso to section 38 is couched in mandatory terms hence the court must conduct a meaningful inquiry and record reasons demonstrating that the statutory threshold has been met. Reliance was placed on the case of Charles Lutta Kasamani -vs- Concord Insurance Co Ltd & Deputy Registrar Milimani High Court Commercial and Admiralty Division [2018] KEHC 8952 (KLR) where the court ) stated;
“37. Even under sections 38 and 40 of the Civil Procedure Act, no one should be committed to civil jail because of his or her inability to pay. In the case of an application for committal, the determining factor is always the ability to pay. Inability should be taken to mean that the judgment debtor has completely no means of settling the decree even if he was given how much time to do so. He has completely no means of paying. He is simply unable and cannot pay.”
19. Relying on Kailikia -vs- M’Thiringi & 2 Others (Civil Appeal E017 of 2024) [2024] KEHC 5860 (KLR) (23 May 2024) (Judgment) it is contended that the Plaintiff has not demonstrated that the Defendant has the present means to satisfy the decree and that financial inability, however frustrating to a decree-holder does not amount to willful refusal. In that case the stated;
“12. While there cannot be a cause of action founded on the lawful exercise of the right of execution, and this court will not forestall the 1 st Respondent’s efforts to realize the fruits of his judgment, there must be strict compliance with the rules of procedure applicable to execution by arrest and detention which deprives the judgment debtor of his liberty.
13.The court has to be satisfied that the conditions set out under section 38 of the Civil Procedure Act were strictly adhered to – that the Appellant was accorded an opportunity to show cause why he should not be committed to civil jail, and that the applicant was established to be a person of means to pay but who had refused to pay in compliance with the judgment of the Court, before the decision to so commit him was reached.”
20. He also relies on Jayne Wangui Gachoka -vs- Kenya Commercial Bank Limited [2013] KEHC 6040 (KLR) where the court stated;
“33. ….The deprivation of liberty sanctioned by sections 38 and 40 of the Civil Procedure Act is permissible and is not in violation of either the Constitution or the ICCPR. The caveat, however, which has been emphasized in all the cases set out above, is that before a person can be committed to civil jail for non-payment of a debt, there must be strict adherence to the procedures laid down in the Civil Procedure Act and Rules, which provide the due process safeguards essential to making the limitation of the right to liberty permitted in this case acceptable in a free and democratic society.”
21. It was submitted further that the alleged transfer of his property to his wife and daughter had not been proved, remained, unsupported by any documentary or forensic evidence. That, under sections 107 and 108 of the Evidence Act, the burden of proof rests on the party asserting fraud. That, no Title searches, transfer documents, bank statements or valuation reports have been produced.
22. On whether the stay of execution is warranted, it was submitted that this court retains wide discretion to stay execution proceedings at the demand of justice, particularly where personal liberty is at stake. That, the threatened committal to civil jail violates the Defendant’s rights and freedoms as well as Article 11 of the International Covenant on Civil and Political Rights. This position was addressed in Beatrice Wanjiku & Another -vs- Attorney General & Another [2012] eKLR where the court stated;
“24. The Civil Procedure Act and the rules provide a legal regime for arrest and committal as a means of enforcement of a judgment debt. Article 11 of the Convention states that, “No one shall be imprisoned merely on the grounds of inability to fulfill a contractual obligation.” I read the merely as used above to mean that one cannot be imprisoned for the sole reason of inability to fulfill a contractual obligation. It means that additional reasons other than inability to pay should exist for one to be imprisoned. Article 11 recognizes that in fact there may be instances where imprisonment for inability to fulfil contractual obligation may be permitted. As there is no inconsistency between article 11 of the Convention and the general tenor of the committal regime under Civil Procedure Act and the Rules, the provisions of article 11 of the Convention are at best an interpretative aid.”
23. As to whether stay should be granted, he relied on Civil Application No. NAI 95 of 1987 where the Court of Appeal where the court stated
“High Court is governed by Order XLI rule 4(2), the questions to be decided being – (a) whether substantial loss may result unless the stay is granted and the application is made without delay; and (b) the applicant has given security. The discretion under rule 5(2)(b) is at large, but as was pointed out in the Kenya Shell case substantial loss is the cornerstone of both jurisdictions. That is what has to be prevented, because such loss would render the appeal nugatory. Therefore, it is necessary to preserve the status quo.”
Analysis and Determination
24. I have carefully considered the application, the rival Affidavits, annexures submissions, authorities and the law. The issue before me is whether the application has merit. To do so I must determine the following question.
Are there any warrants of arrets for the Committal of the applicant to civil jail pending before me?
25. It is not in disputed that warrants of arrest were issued on 05/06/2024. –pursuant to the Notice to Show Cause (NTSC) which was heard by the DR and allowed on 24/04/2024. Warrants of arrest were subsequently issued on the proceedings thereafter were as follows; it is also not in dispute that the applicant was presented before court – upon the execution of the warrant of arrest
26. on 29/05/2025, the parties appeared before the Deputy Registrar and the court found that the Applicant’s advocate was not properly on record and gave him time to put his house in order. The warrants of arrest were extended.
27. On 11/07/2024, the parties appeared before the judge and the Applicant appeared virtually from Nyatieko police station. Counsel for the Applicant/Judgment Debtor (JD) said that he was not aware of the mention date. The advocate for the Decree Holder (DH) informed court that judgment was entered on 11/10/2019 and kshs 5 million was paid on 22/11/2019 but no further payments had been made. That, they had investigated and found out that the Judgment Debtor (JD) was in Kisii and that he had disposed off a property known as Nbi/Block 72/1088 on 27/05/2019 during the pendency of the case. That, since then, they had been unable to trace any other assets. The court was asked to commit the JD to civil jail.
28. The JD’s advocate informed court that the kshs 5 million was paid by the insurance and the JD was not aware. That, suit 114 of 2024 had been filed in the CM’s court-Makueni and that the JD was sick and was undergoing cancer treatment. That, the JD was willing to provide a payment proposal. That, an application dated 24/05/2024 seeking stay of execution had been filed but had not been actioned by the DR hence leaving the JD exposed. He prayed that the warrants of arrest be stayed and that the JD be allowed to return to court on 29/07/2024 so as to allow him time to give a proposal on how to pay.
29. In rejoinder, the advocate for the DH pressed for a proposal of kshs 500,000/= per month but the JD’s advocate said that the JD could not afford that amount as he was retired and sickly. After hearing the Chief Inspector who informed court that he had no cell to keep an ailing person, the court directed;
a) The warrant of arrest remains in force.
b) The JD is in the custody of the OCS. The OCS to ensure he appears in person tomorrow at 9.00am. The JD to appear with his documents and a proposal on 12/07/2024.
30. On 12/07/2024, the judge noted that the JD’s advocate was not properly on record and expunged all his submissions from the record. It was directed that the warrant of arrest was still in force and the committal hearing was deferred to 17/07/2024 before the DR.
31. On 17/07/2024, the parties appeared before the DR and consented to have the JD’s advocate put on record. The Dr issued the following orders;
a) Parties to appear before Judge on 22/07/2024 for recording of the consent for Mr. Nyaribo to come on record.
b) Parties to appear before DR for committal proceedings on 31/07/2024. In the meantime, the JD is released under the care of the OCS Nyatieko police station. W/A extended.
32. On 22/07/2024, the parties recorded the consent before the Judge.
33. On 31/07/2024, the parties appeared before the DR and counsel for the DH informed court that the matter was for committal proceedings pursuant to a warrant of arrest issued on 01/06/2024. The JD was present in court. The JD’s counsel stated that the history of the matter had changed as committal proceedings were taken before he was appointed. He urged the court to lift the warrants as they had been spent and the JD was no longer a subject of Nyatieko police station.
34. The counsel for the DH responded that they were appearing for committal proceedings as directed by the court. He proceeded to justify the committal of the JD to civil jail. He stated that they had investigated and discovered that the JD had transferred property known as Nairobi/Block 72/1088 on 27/05/2019 to Rhoda Moraa Nyamweya. That, the JD had filed an affidavit of means and given a proposal to pay kshs 20,000/= per month until September 2025 and thereafter kshs 50,000/= per month until payment in full. That, no bank account had been attached hence the JD’s earnings could not be confirmed. That, the proposal was absurd and a hindrance to the DH. He submitted that the JD should be ordered to pay kshs 500,000/= per month and to surrender land (if any) for sale.
35. In rejoinder, the counsel for the JD argued that the counsel for the DH was rushing the committal proceedings so as to deny the JD a chance to be heard. That, the JD’s application dated 09/05/2024 pertained to the JD not being heard. He denied that the JD had given a proposal and argued that all the submissions and proceedings filed before he came on record were expunged from the record by the Judge. He argued that the warrants of arrest were meant to avail the JD in court and thereafter the court was to set a hearing date. That, the court should allow the JD to reply to the Notice to Show Cause as per the dictates of the rights to fair hearing.
36. Noting that the JD’s proceedings had been expunged from the record, the DR allowed the JD’s counsel to respond to the application dated 12/07/2024 and directed the parties to appear physically before her on 19/08/2024. They were also directed to appear before the Judge on 23/09/2024 for directions of the application dated 08/05/2024.
37. On 19/08/2024, the counsel for the DH submitted that the JD had not filed any response hence had not demonstrated why he should not be committed to civil jail. The counsel for the JD submitted that he was yet to be served with the application for committal. He argued that the fact of documents being on CTS does not constitute service. Counsel for the DH submitted that service had been done and was evidenced by the fact that the JD had filed an affidavit of means despite the same having been expunged from the record.
38. The DR noted that the counsel for JD did not raise the issue of service during his last appearance before her and that he had tactfully made attempts to delay the matter. In the interests of justice however, she adjourned the committal proceedings for the last time.
39. On 09/09/2024, the DR was informed that the JD had appointed a new counsel who had been in communication with counsel for the DH. The parties requested for a mention date in a month to confirm the progress of settlement.
40. On 01/11/2024, the new counsel for the JD informed the DR that the JD had filed an insolvency cause in Kisii High Court and that interim orders had been issued. The counsel requested for a date before the Judge for appropriate orders.
41. On 11/03/2025, the parties appeared before the Judge and were given a further mention date for JD’s counsel to avail the orders in the insolvency cause. Subsequently, this matter was stayed and mentioned severally to check progress of the insolvency cause.
42. On 18/11/2025, directions were given that the Application dated 31/10/2025 be canvassed through written submissions.
Analysis
43. From the history of the matter, it is evident that the Application to commit the JD to civil jail was initially prosecuted on 11/07/2024 but the submissions by JD’s counsel were later expunged from the record as it was found that he was not properly on record. On 19/08/2024, the committal proceedings were adjourned for the last time so as to allow the JD’s counsel to respond to the Application.
44. Shortly thereafter, this court was informed that the JD had filed insolvency proceedings at the Kisii High Court and as such the matter in this court was temporarily halted. The ruling in Kisii HCCOMMIN E001 of 2024 was eventually delivered on 23/10/2025 and the stay orders were declined. In doing so, the court stated as follows;
“27. I am not satisfied at this stage that the applicant gazetted the petition herein under section 32(4) of the Insolvency Act. This is a court of equity and the applicant is seeking equitable orders at this stage. He has not come to court with clean hands thus he is not entitled to consideration of the prayer for stay orders. This is an omission which cannot be overlooked and I decline to hear the application. I proceed to strike out under section 32 (5) Rule 5 of the Insolvency Act. Costs to the Respondent.”
45. The implication of the Kisii High Court ruling is that there is no longer a stay of the execution proceedings pending in this court and according to the record of 19/08/2024 before the DR, the committal proceedings are still live before this court.
46. The proviso to section 38 of the Civil Procedure Code states that;
“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;
(a)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; or
(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; 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, 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; or
(c)that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.”
47. This is strengthened by Order 22, rule 31 which provides :Discretionary power to permit judgment-debtor to show cause against detention in prison
(1) Notwithstanding anything in these Rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in prison of a judgment debtor who is liable to be arrested in pursuance of the application, the court may, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the court on a day to be specified in the notice and show cause why he should not be committed to prison.
(2) Where appearance is not made in obedience to the notice, the court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor.
48. In my view the day the applicant was presented to Court pursuant to the warrants of arrest is when the proceedings to determine whether or not he should be committed to Civil jail began. He was arrested . He was presented to court and all he has been trying to do is to demonstrate why he should not be committed to civil jail. In between he attempted to file for bankruptcy , another attempt to demonstrate his inability to pay and there for a reason not to be committed to civil jail.
49. In my view the warrants of arrest were spent when the applicant was arrested and presented before court. Upon his presentation to court, s. 38 of the CPA and order 22 rule 31 of the CPR came into force. It is clear to me that the issue whether or not he should be committed to civil jail has not been concluded – and no determination has been made whether or not the applicant should be committed to Civil Jail
50. The applicant went before the court in Kisii – seeking stay of these proceedings pending the hearing and determination of a “bankruptcy petition” . It is evident that he had not gazetted the alleged petition for Bankruptcy hence the dismissal of that application.
51. It is after the dismissal of that ‘petition’ the applicant brought this application. There is no pending bankruptcy petition at the time of hearing this application as the same was dismissed. Hence the applicant’s first 1 st argument, and referral to the Bankruptcy proceedings, - and Pan African Credit Finance Ltd (Above) is not applicable – because at the time of presenting this application, his application related to bankruptcy had been dismissed by the court in Kisii.
52. Taking into consideration the proviso to section 38 (d) that –
“… Execution by detention in prison shall not be ordered unless, after giving the Judgement Debtor an opportunity of showing cause why he should not be committed to Prison ...”
53. It is clear that no decision has been made and the Judgment debtor has been on a tangent to show cause. It is therefore evident that there are safeguards which are available to a judgment debtor before committal to civil jail. The applicant needs to “tulia” and make use of the opportunity that the law gives him to resolve this matter . This trying this and that appears to be misusing judicial time.
54. In light of the foregoing this application is pre-mature and abuse of the court process.
55. The same is dismissed with no orders to costs.
RULING , Dated, signed and delivered via CTS on 5 th May 2026
( With consent of counsel)
Mumbua T Matheka
Judge
RULING HCCC 2 of 2018 Page 2 of 2
IN THE HIGH COURT AT MAKUENI
CIVIL SUIT NO. 2 OF 2018
SPANISH COACH EXPRESS LTD………..……PLAINTIFF/RESPONDENT
-VERSUS-
CHARLES NYAMWEYA MARUBE …………....DEFENDANT/APPLICANT
RULING
1. T he Application for determination is dated 31/10/2025 and was filed under certificate of urgency. It is brought under Order 45 Rule 1, 22, 34(2) of the Civil Procedure Rules 2010, Sections 80 (a) & (b), 38, 3A of the Civil Procedure Act, Article 159 of the Constitution of Kenya and all other enabling provisions of the law. It seeks the following orders;
a) Spent.
b) Spent
c) THAT pending the hearing and determination of prayers 4 and 5 herein, there be a stay of execution of warrants of arrest issued by this honorable court on 05/06/2024 and any other consequential orders that will lead to the arrest of the Applicant.
d) THAT the ruling and orders of the court made on 05/06/2024 be reviewed and varied.
e) THAT the warrants of arrest and committal to civil jail be stayed.
f) THAT the costs of this application be provided for.
2. The Application is supported by the grounds on its face and the by the affidavit of Charles Nyamweya Marube sworn on the same day. He deponed that he is the judgment debtor and well versed with the matters pertaining to this suit. That, the suit was instituted in 2018 due to an accident that involved his motor vehicle. That, the matter was purely handled by the insurance and he was not aware of the outcome.
3. That, in the year 2025, he realized that he was needed in court sometime in 2023 to show cause as to why he should not be committed to civil jail for not paying kshs seventeen million, one hundred and six thousand, two hundred and ninety (17, 106, 290/=). That, he instructed a firm of advocates to represent him in the matter but they did not lay bare his financial position as regards satisfying the decree herein hence this Application.
4. He deponed that he has not refused, denied to meet or satisfy the requirement of the decree but is financially unable to meet the requirements of the decree. That, the decree holder searched all about him and discovered that he has no property to attach and satisfy the decree hence the reason he has taken the route of civil jail as a mode of execution. That, the amount in question of Ksh.17,106,290/= is a colossal sum of money that cannot easily be available for payment to satisfy the decree. That, he prays for suspension of the warrants of arrest as he is unable to meet the requirements to satisfy the decree at the moment.
5. That the act that gave rise to the suit was purely an act of God though he was blamed as the owner of the vehicle and it is on that basis that he requests the court to review and set aside the warrants of arrest.
6. The Application was opposed through grounds of opposition dated 18/11/2025 and Replying Affidavit sworn by the legal affairs Manager of the M/S Heritage Insurance Company Ltd. The insurer and of the plaintiff/decree holder. Gibson Maina Kamau on 19/11/2025. The grounds of opposition are;
a) The Application is an abuse of the court process as it seeks relief from a threat that no longer exists and against a process that has been conclusively completed.
b) The Application is spent, overtaken by events and rendered moot. The warrants of arrest, which form the sole subject of the Application, were executed in full when the Defendant/Applicant was arrested and brought before this honorable court.
c) The Application offends the provision of Order 45 Rule 1 of the Civil Procedure Rules, 2010.
d) The Application is otherwise frivolous, vexatious and discloses no reasonable cause of action against the Plaintiff.
7. That the insurers of the decree-holder are the ultimate beneficiaries of this case under the doctrine of subrogation.
8. That, he is aware that the Defendant filed Kisii HCCOMMIN No. E001 of 2024: Charles Nyamweya Marube -vs- Spanish Coach Express where he was granted stay of execution on 11/12/2024 pending the hearing and determination of the stay Application. The court order is exhibited as GMK 1. That a ruling was delivered on 22/10/2025 wherein the Application was struck out. A copy of the ruling is exhibited as GMK 2.
9. That, since the delivery of the ruling, the Plaintiff has not yet commenced the process of execution against the Defendant. That, no application for the issuance of a warrant of arrest has been made by the Plaintiff and consequently, no such warrants have been applied for, issued or are pending.
10. That, after issuance of warrants of arrest on 05/06/2024, the Defendant was arrested on 11/07/2024 and brought before this court virtually for hearing of the application for a committal order. That, the Plaintiff’s Advocates sought committal of the Defendant to civil jail on account of the following reasons;
a) Judgment was entered on 11/10/2019 and five years later, the judgment-debtor has not paid the decretal sum which currently is kshs 17,109, 210.59 as per the arrest warrants.
b) As per the investigation report dated 19/12/2016 by Messrs Windscope Loss Asessors, the Defendant owned a house in Akiba Estate Nairobi-Title No. Nairobi/Block 72/1088-which is capable of discharging the judgment sum.
c) In an attempt to evade judgment of the honorable court, the Defendant transferred the property to his wife/daughter-Rodah Moraa Nyamweya .
11. He deponed that on the said date, the Defendant’s counsel requested that the Defendant be released on account of his bad health and be allowed to come up with a payment plan whereupon this court issued the following orders;
a) That the Defendant to remain in the custody of the OCS Nyatieko police station however due to his medical condition, the OCS can release him to go home but will be in custody.
b) That the committal hearing to proceed tomorrow, the 12 th July 2024 at 9.00am virtually.
c) That the Defendant to avail the medical reports.
d) That the treatment notes to be uploaded onto the judiciary portal or emailed to Deputy Registrar of the High Court Makueni.
12. He deponed that when the matter came up in court on 12/07/2024, the Defendant was presented virtually from Nyatieko Police station and the Deputy Registrar issued the following orders;
a) That the Notice to Show Cause on committal to civil jail will be heard on the 17 th July 2024 before the Deputy Registrar.
b) That the judgment-debtor shall remain under the custody of the OCS Nyatieko Police Station however due to his ill health he shall be released on his own cognizance with the OCS to ensure he is presented physically to Makueni Law Courts on the said date.
c) That the warrants of attachment are extended until then .
13. He deponed that upon the Defendant’s appearance before the court during the committal proceedings, the warrants of arrest ceased to remain in force, the same having been executed by virtue of the Defendant’s arrest and production before the court. That, the Defendant’s assertion, that the warrants of arrest issued on 05/06/2024 are still in place, is factually incorrect and misleading to this court. That, the ‘imminent danger of arrest’ is mere fiction created by the Defendant.
14. He deponed that in the absence of any commenced execution process or any issued warrant of arrest, the Defendant’s Application is fundamentally flawed, pre-mature and a non-starter. The Applicant is essentially seeking to restrain an action that has not been taken and a threat that does not exist. That, the Application is an abuse of court process as it seeks to stay a non-existent threat.
15. Directions were given that the Application be canvassed through written submissions but the Respondent waived his right to file submissions on the ground that the Replying Affidavit is detailed enough.
The defendant / Applicant’s Submissions
16. The issues for determination were stated to be;
a) Whether the Notice of Motion is proper, timely and not an abuse of court process.
b) Whether the warrants of arrest and threatened committal to civil jail comply with section 38 of the Civil Procedure Act and Order 22 Rule 34 of the Civil Procedure Rules.
c) Whether the Plaintiff has proved that the Defendant has the means to pay and has willfully refused to do so including the allegation of fraudulent transfer of property.
d) Whether the circumstances warrant a stay of execution pending a proper inquiry by the court .
17. As to whether the Application is an abuse of court process, it was submitted that the Defendant is not challenging the existence of the decree but is challenging the manner of execution: the lawfulness, proportionality and procedural regularity of the mode of execution. It is submitted that his is a legitimate invocation of this court’s supervisory, statutory and inherent jurisdiction to ensure that execution proceedings comply with the law and relies on the case of Pan African Credit Finance Ltd -vs- Hellen Chebet Koech [2011] eKLR where the court emphasized that;
“The court may at any time after the presentation of a bankruptcy petition, stay an action, execution or other legal process against the property or person of the debtor and any court in which proceedings are pending against the debtor may, on proof that a bankruptcy petition has been presented by or against the debtor, either stay the proceedings or allows them to continue on such terms as it may think just.”
18. As to whether the warrants comply with the relevant law, the appellant relied on t section 38 of the Civil Procedure Act for the submission that committal to civil jail is permitted only after the court has conducted an inquiry on the judgment debtor. That, the proviso to section 38 is couched in mandatory terms hence the court must conduct a meaningful inquiry and record reasons demonstrating that the statutory threshold has been met. Reliance was placed on the case of Charles Lutta Kasamani -vs- Concord Insurance Co Ltd & Deputy Registrar Milimani High Court Commercial and Admiralty Division [2018] KEHC 8952 (KLR) where the court ) stated;
“37. Even under sections 38 and 40 of the Civil Procedure Act, no one should be committed to civil jail because of his or her inability to pay. In the case of an application for committal, the determining factor is always the ability to pay. Inability should be taken to mean that the judgment debtor has completely no means of settling the decree even if he was given how much time to do so. He has completely no means of paying. He is simply unable and cannot pay.”
19. Relying on Kailikia -vs- M’Thiringi & 2 Others (Civil Appeal E017 of 2024) [2024] KEHC 5860 (KLR) (23 May 2024) (Judgment) it is contended that the Plaintiff has not demonstrated that the Defendant has the present means to satisfy the decree and that financial inability, however frustrating to a decree-holder does not amount to willful refusal. In that case the stated;
“12. While there cannot be a cause of action founded on the lawful exercise of the right of execution, and this court will not forestall the 1 st Respondent’s efforts to realize the fruits of his judgment, there must be strict compliance with the rules of procedure applicable to execution by arrest and detention which deprives the judgment debtor of his liberty.
13.The court has to be satisfied that the conditions set out under section 38 of the Civil Procedure Act were strictly adhered to – that the Appellant was accorded an opportunity to show cause why he should not be committed to civil jail, and that the applicant was established to be a person of means to pay but who had refused to pay in compliance with the judgment of the Court, before the decision to so commit him was reached.”
20. He also relies on Jayne Wangui Gachoka -vs- Kenya Commercial Bank Limited [2013] KEHC 6040 (KLR) where the court stated;
“33. ….The deprivation of liberty sanctioned by sections 38 and 40 of the Civil Procedure Act is permissible and is not in violation of either the Constitution or the ICCPR. The caveat, however, which has been emphasized in all the cases set out above, is that before a person can be committed to civil jail for non-payment of a debt, there must be strict adherence to the procedures laid down in the Civil Procedure Act and Rules, which provide the due process safeguards essential to making the limitation of the right to liberty permitted in this case acceptable in a free and democratic society.”
21. It was submitted further that the alleged transfer of his property to his wife and daughter had not been proved, remained, unsupported by any documentary or forensic evidence. That, under sections 107 and 108 of the Evidence Act, the burden of proof rests on the party asserting fraud. That, no Title searches, transfer documents, bank statements or valuation reports have been produced.
22. On whether the stay of execution is warranted, it was submitted that this court retains wide discretion to stay execution proceedings at the demand of justice, particularly where personal liberty is at stake. That, the threatened committal to civil jail violates the Defendant’s rights and freedoms as well as Article 11 of the International Covenant on Civil and Political Rights. This position was addressed in Beatrice Wanjiku & Another -vs- Attorney General & Another [2012] eKLR where the court stated;
“24. The Civil Procedure Act and the rules provide a legal regime for arrest and committal as a means of enforcement of a judgment debt. Article 11 of the Convention states that, “No one shall be imprisoned merely on the grounds of inability to fulfill a contractual obligation.” I read the merely as used above to mean that one cannot be imprisoned for the sole reason of inability to fulfill a contractual obligation. It means that additional reasons other than inability to pay should exist for one to be imprisoned. Article 11 recognizes that in fact there may be instances where imprisonment for inability to fulfil contractual obligation may be permitted. As there is no inconsistency between article 11 of the Convention and the general tenor of the committal regime under Civil Procedure Act and the Rules, the provisions of article 11 of the Convention are at best an interpretative aid.”
23. As to whether stay should be granted, he relied on Civil Application No. NAI 95 of 1987 where the Court of Appeal where the court stated
“High Court is governed by Order XLI rule 4(2), the questions to be decided being – (a) whether substantial loss may result unless the stay is granted and the application is made without delay; and (b) the applicant has given security. The discretion under rule 5(2)(b) is at large, but as was pointed out in the Kenya Shell case substantial loss is the cornerstone of both jurisdictions. That is what has to be prevented, because such loss would render the appeal nugatory. Therefore, it is necessary to preserve the status quo.”
Analysis and Determination
24. I have carefully considered the application, the rival Affidavits, annexures submissions, authorities and the law. The issue before me is whether the application has merit. To do so I must determine the following question.
Are there any warrants of arrets for the Committal of the applicant to civil jail pending before me?
25. It is not in disputed that warrants of arrest were issued on 05/06/2024. –pursuant to the Notice to Show Cause (NTSC) which was heard by the DR and allowed on 24/04/2024. Warrants of arrest were subsequently issued on the proceedings thereafter were as follows; it is also not in dispute that the applicant was presented before court – upon the execution of the warrant of arrest
26. on 29/05/2025, the parties appeared before the Deputy Registrar and the court found that the Applicant’s advocate was not properly on record and gave him time to put his house in order. The warrants of arrest were extended.
27. On 11/07/2024, the parties appeared before the judge and the Applicant appeared virtually from Nyatieko police station. Counsel for the Applicant/Judgment Debtor (JD) said that he was not aware of the mention date. The advocate for the Decree Holder (DH) informed court that judgment was entered on 11/10/2019 and kshs 5 million was paid on 22/11/2019 but no further payments had been made. That, they had investigated and found out that the Judgment Debtor (JD) was in Kisii and that he had disposed off a property known as Nbi/Block 72/1088 on 27/05/2019 during the pendency of the case. That, since then, they had been unable to trace any other assets. The court was asked to commit the JD to civil jail.
28. The JD’s advocate informed court that the kshs 5 million was paid by the insurance and the JD was not aware. That, suit 114 of 2024 had been filed in the CM’s court-Makueni and that the JD was sick and was undergoing cancer treatment. That, the JD was willing to provide a payment proposal. That, an application dated 24/05/2024 seeking stay of execution had been filed but had not been actioned by the DR hence leaving the JD exposed. He prayed that the warrants of arrest be stayed and that the JD be allowed to return to court on 29/07/2024 so as to allow him time to give a proposal on how to pay.
29. In rejoinder, the advocate for the DH pressed for a proposal of kshs 500,000/= per month but the JD’s advocate said that the JD could not afford that amount as he was retired and sickly. After hearing the Chief Inspector who informed court that he had no cell to keep an ailing person, the court directed;
a) The warrant of arrest remains in force.
b) The JD is in the custody of the OCS. The OCS to ensure he appears in person tomorrow at 9.00am. The JD to appear with his documents and a proposal on 12/07/2024.
30. On 12/07/2024, the judge noted that the JD’s advocate was not properly on record and expunged all his submissions from the record. It was directed that the warrant of arrest was still in force and the committal hearing was deferred to 17/07/2024 before the DR.
31. On 17/07/2024, the parties appeared before the DR and consented to have the JD’s advocate put on record. The Dr issued the following orders;
a) Parties to appear before Judge on 22/07/2024 for recording of the consent for Mr. Nyaribo to come on record.
b) Parties to appear before DR for committal proceedings on 31/07/2024. In the meantime, the JD is released under the care of the OCS Nyatieko police station. W/A extended.
32. On 22/07/2024, the parties recorded the consent before the Judge.
33. On 31/07/2024, the parties appeared before the DR and counsel for the DH informed court that the matter was for committal proceedings pursuant to a warrant of arrest issued on 01/06/2024. The JD was present in court. The JD’s counsel stated that the history of the matter had changed as committal proceedings were taken before he was appointed. He urged the court to lift the warrants as they had been spent and the JD was no longer a subject of Nyatieko police station.
34. The counsel for the DH responded that they were appearing for committal proceedings as directed by the court. He proceeded to justify the committal of the JD to civil jail. He stated that they had investigated and discovered that the JD had transferred property known as Nairobi/Block 72/1088 on 27/05/2019 to Rhoda Moraa Nyamweya. That, the JD had filed an affidavit of means and given a proposal to pay kshs 20,000/= per month until September 2025 and thereafter kshs 50,000/= per month until payment in full. That, no bank account had been attached hence the JD’s earnings could not be confirmed. That, the proposal was absurd and a hindrance to the DH. He submitted that the JD should be ordered to pay kshs 500,000/= per month and to surrender land (if any) for sale.
35. In rejoinder, the counsel for the JD argued that the counsel for the DH was rushing the committal proceedings so as to deny the JD a chance to be heard. That, the JD’s application dated 09/05/2024 pertained to the JD not being heard. He denied that the JD had given a proposal and argued that all the submissions and proceedings filed before he came on record were expunged from the record by the Judge. He argued that the warrants of arrest were meant to avail the JD in court and thereafter the court was to set a hearing date. That, the court should allow the JD to reply to the Notice to Show Cause as per the dictates of the rights to fair hearing.
36. Noting that the JD’s proceedings had been expunged from the record, the DR allowed the JD’s counsel to respond to the application dated 12/07/2024 and directed the parties to appear physically before her on 19/08/2024. They were also directed to appear before the Judge on 23/09/2024 for directions of the application dated 08/05/2024.
37. On 19/08/2024, the counsel for the DH submitted that the JD had not filed any response hence had not demonstrated why he should not be committed to civil jail. The counsel for the JD submitted that he was yet to be served with the application for committal. He argued that the fact of documents being on CTS does not constitute service. Counsel for the DH submitted that service had been done and was evidenced by the fact that the JD had filed an affidavit of means despite the same having been expunged from the record.
38. The DR noted that the counsel for JD did not raise the issue of service during his last appearance before her and that he had tactfully made attempts to delay the matter. In the interests of justice however, she adjourned the committal proceedings for the last time.
39. On 09/09/2024, the DR was informed that the JD had appointed a new counsel who had been in communication with counsel for the DH. The parties requested for a mention date in a month to confirm the progress of settlement.
40. On 01/11/2024, the new counsel for the JD informed the DR that the JD had filed an insolvency cause in Kisii High Court and that interim orders had been issued. The counsel requested for a date before the Judge for appropriate orders.
41. On 11/03/2025, the parties appeared before the Judge and were given a further mention date for JD’s counsel to avail the orders in the insolvency cause. Subsequently, this matter was stayed and mentioned severally to check progress of the insolvency cause.
42. On 18/11/2025, directions were given that the Application dated 31/10/2025 be canvassed through written submissions.
Analysis
43. From the history of the matter, it is evident that the Application to commit the JD to civil jail was initially prosecuted on 11/07/2024 but the submissions by JD’s counsel were later expunged from the record as it was found that he was not properly on record. On 19/08/2024, the committal proceedings were adjourned for the last time so as to allow the JD’s counsel to respond to the Application.
44. Shortly thereafter, this court was informed that the JD had filed insolvency proceedings at the Kisii High Court and as such the matter in this court was temporarily halted. The ruling in Kisii HCCOMMIN E001 of 2024 was eventually delivered on 23/10/2025 and the stay orders were declined. In doing so, the court stated as follows;
“27. I am not satisfied at this stage that the applicant gazetted the petition herein under section 32(4) of the Insolvency Act. This is a court of equity and the applicant is seeking equitable orders at this stage. He has not come to court with clean hands thus he is not entitled to consideration of the prayer for stay orders. This is an omission which cannot be overlooked and I decline to hear the application. I proceed to strike out under section 32 (5) Rule 5 of the Insolvency Act. Costs to the Respondent.”
45. The implication of the Kisii High Court ruling is that there is no longer a stay of the execution proceedings pending in this court and according to the record of 19/08/2024 before the DR, the committal proceedings are still live before this court.
46. The proviso to section 38 of the Civil Procedure Code states that;
“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;
(a)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; or
(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; 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, 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; or
(c)that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.”
47. This is strengthened by Order 22, rule 31 which provides :Discretionary power to permit judgment-debtor to show cause against detention in prison
(1) Notwithstanding anything in these Rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in prison of a judgment debtor who is liable to be arrested in pursuance of the application, the court may, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the court on a day to be specified in the notice and show cause why he should not be committed to prison.
(2) Where appearance is not made in obedience to the notice, the court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor.
48. In my view the day the applicant was presented to Court pursuant to the warrants of arrest is when the proceedings to determine whether or not he should be committed to Civil jail began. He was arrested . He was presented to court and all he has been trying to do is to demonstrate why he should not be committed to civil jail. In between he attempted to file for bankruptcy , another attempt to demonstrate his inability to pay and there for a reason not to be committed to civil jail.
49. In my view the warrants of arrest were spent when the applicant was arrested and presented before court. Upon his presentation to court, s. 38 of the CPA and order 22 rule 31 of the CPR came into force. It is clear to me that the issue whether or not he should be committed to civil jail has not been concluded – and no determination has been made whether or not the applicant should be committed to Civil Jail
50. The applicant went before the court in Kisii – seeking stay of these proceedings pending the hearing and determination of a “bankruptcy petition” . It is evident that he had not gazetted the alleged petition for Bankruptcy hence the dismissal of that application.
51. It is after the dismissal of that ‘petition’ the applicant brought this application. There is no pending bankruptcy petition at the time of hearing this application as the same was dismissed. Hence the applicant’s first 1 st argument, and referral to the Bankruptcy proceedings, - and Pan African Credit Finance Ltd (Above) is not applicable – because at the time of presenting this application, his application related to bankruptcy had been dismissed by the court in Kisii.
52. Taking into consideration the proviso to section 38 (d) that –
“… Execution by detention in prison shall not be ordered unless, after giving the Judgement Debtor an opportunity of showing cause why he should not be committed to Prison ...”
53. It is clear that no decision has been made and the Judgment debtor has been on a tangent to show cause. It is therefore evident that there are safeguards which are available to a judgment debtor before committal to civil jail. The applicant needs to “tulia” and make use of the opportunity that the law gives him to resolve this matter . This trying this and that appears to be misusing judicial time.
54. In light of the foregoing this application is pre-mature and abuse of the court process.
55. The same is dismissed with no orders to costs.
RULING , Dated, signed and delivered via CTS on 5 th May 2026
( With consent of counsel)
Mumbua T Matheka
Judge
RULING HCCC 2 of 2018 Page 2 of 2