Background and Introduction
1. This is a ruling on the Notice of Motion dated 12th March 2026, by which the Applicant, Veronica Wairimu Mwangi, seeks a stay of execution of the judgment, decree and all process consequent thereon, including the warrants of arrest, issued in Nairobi Tribunal Case No. 439 of 2019 – Biashara Sacco Society Limited v Veronica Wairimu Mwangi, pending the hearing and determination of her bankruptcy petition.
2. The background is short. The Respondent holds a decree against the Applicant for Kshs. 436,178.21, which the Applicant does not dispute. On 24th October 2025 she filed a Statement of Affairs with her bankruptcy petition, disclosing that she is unemployed, that her only assets are personal effects worth Kshs. 15,000/=, and that her liabilities are the sum claimed by the Respondent. Notwithstanding the pending petition, the Tribunal issued warrants for her arrest with a view to committing her to civil jail, prompting this application.
3. Counsel for the Applicant urged that Sections 22 and 48(1)(a) of the Insolvency Act clothe this Court with jurisdiction to stay the execution, relying on Flamco Limited & 5 others v Bank of Baroda (K) Limited, James Mwangi Macharia v Gerald Ochoki alias Marube and PanAfrican Credit Finance Ltd v Hellen Chebet Koech, and that the tests in Order 22 Rule 22 of the Civil Procedure Rules and Mukunya Mugo 'A' & another v Elizabeth Mugure Mukunya are satisfied.
4. Counsel for the Respondent opposed the application as bad in law, premature and an abuse of process, relying on Section 32 of the Insolvency Act to contend that the petition lacks the disclosure the section requires and was not published as required, and urging that the Applicant cannot be taken at her word that she has only one creditor and no assets.
5. On that second limb, the objection that the petition discloses no financial statement is not borne out by the record. the Statement of Affairs of 24th October 2025 is filed and discloses the Applicant's assets, liabilities and employment status as Section 32(2) requires. Whether the publication required by Section 32(4) was effected, and whether the disclosure is complete, are matters for the petition itself and for the examination of the debtor which the Act makes available to a doubting creditor. They do not fall for decision on this application, for reasons that will become apparent.
6. The decisive question is jurisdiction, which the Applicant insists that this Court is clothed with, and that must be resolved first, because, as Nyarangi JA held in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1, "jurisdiction is everything" and "without it, a court has no power to make one more step".
Analysis and Determination
7. The execution the Applicant seeks to stay, including the warrants of arrest, was not issued by this Court. It was issued in Nairobi Tribunal Case No. 439 of 2019, by a Tribunal other than the High Court. For that reason, Section 23 of the Insolvency Act becomes relevant. It provides as follows:
8. "23. (1) This section applies if an execution process has been issued by a court other than the High Court. (2) If it is proved to the issuing court that an application for a bankruptcy order in respect of the debtor has been made to the High Court, that court may either — (a) stay the execution process on such terms as it considers appropriate; or (b) permit the execution process to continue on such terms as it considers appropriate."
9. This provision should be read together with Section 2 of the Act which defines "the Court" to mean the High Court. Of importance is that the term “Court” is used consistently elsewhere in the Act. Section 23 conspicuously does not use it but speaks only of "the issuing court". That in my view is a deliberate choice, and it places the power to stay, or to permit the continuation of, an execution process issued by another court or tribunal in that court or tribunal, and not in the High Court.
10. This is exactly how Majanja J construed the same provision in James Mwangi Macharia v Gerald Ochoki alias Marube (Insolvency Cause No. E005 of 2019):
"A plain reading of section 23 of the Act shows that the provision applies where the execution process is issued by any other court other than the High Court. Further, the court empowered to stay any execution is the court that issued the process hence the use of the phrase 'issuing court'. In this case the execution process was issued by the Bomet Magistrates' Court and it is to that court that the Debtor must look to for relief."
11. On that basis, the debtor's own application before the High Court in that matter was struck out for want of jurisdiction. The holding applies with equal force here.
12. Section 23 of the current Act replaced Section 11 of the repealed Bankruptcy Act, which was considerably wider:
"11. (1) 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 allow them to continue on such terms as it may think just."
13. Section 11 allowed a stay by "any court in which proceedings are pending" while Section 23 allows it only by "the issuing court". That amendment was deliberate, and the cited case of PanAfrican Credit Finance Ltd v Hellen Chebet Koech, which was decided on the wording of Section 11, cannot be read across to Section 23. Flamco Limited & 5 others v Bank of Baroda (K) Limited is equally no assistance, as it did not concern execution issued by a subordinate court or tribunal.
14. I am satisfied, in agreement with In re Mary Nyambura Wanjohi (Insolvency Cause No. E001 of 2021) [2024] KEHC 573 (KLR), that jurisdiction to stay, or to permit the continuation of, the execution process in Nairobi Tribunal Case No. 439 of 2019, including the warrants of arrest, lies exclusively with the Tribunal, as the issuing court, once proof of the pending petition is placed before it. This Court cannot arrogate to itself a jurisdiction that Parliament has, in deliberate terms, placed elsewhere; to do so would be to rewrite, rather than interpret, the statute.
Disposition
15. Having so found, the Notice of Motion dated 12th March 2026 is hereby struck out with costs for want of jurisdiction.
DATED, SIGNED AND DELIVERED AT NAIROBI
THIS 21st DAY OF SEPTEMBER 2026.
F. MUGAMBI
JUDGE
1. This is a ruling on the Notice of Motion dated 12th March 2026, by which the Applicant, Veronica Wairimu Mwangi, seeks a stay of execution of the judgment, decree and all process consequent thereon, including the warrants of arrest, issued in Nairobi Tribunal Case No. 439 of 2019 – Biashara Sacco Society Limited v Veronica Wairimu Mwangi, pending the hearing and determination of her bankruptcy petition.
2. The background is short. The Respondent holds a decree against the Applicant for Kshs. 436,178.21, which the Applicant does not dispute. On 24th October 2025 she filed a Statement of Affairs with her bankruptcy petition, disclosing that she is unemployed, that her only assets are personal effects worth Kshs. 15,000/=, and that her liabilities are the sum claimed by the Respondent. Notwithstanding the pending petition, the Tribunal issued warrants for her arrest with a view to committing her to civil jail, prompting this application.
3. Counsel for the Applicant urged that Sections 22 and 48(1)(a) of the Insolvency Act clothe this Court with jurisdiction to stay the execution, relying on Flamco Limited & 5 others v Bank of Baroda (K) Limited, James Mwangi Macharia v Gerald Ochoki alias Marube and PanAfrican Credit Finance Ltd v Hellen Chebet Koech, and that the tests in Order 22 Rule 22 of the Civil Procedure Rules and Mukunya Mugo 'A' & another v Elizabeth Mugure Mukunya are satisfied.
4. Counsel for the Respondent opposed the application as bad in law, premature and an abuse of process, relying on Section 32 of the Insolvency Act to contend that the petition lacks the disclosure the section requires and was not published as required, and urging that the Applicant cannot be taken at her word that she has only one creditor and no assets.
5. On that second limb, the objection that the petition discloses no financial statement is not borne out by the record. the Statement of Affairs of 24th October 2025 is filed and discloses the Applicant's assets, liabilities and employment status as Section 32(2) requires. Whether the publication required by Section 32(4) was effected, and whether the disclosure is complete, are matters for the petition itself and for the examination of the debtor which the Act makes available to a doubting creditor. They do not fall for decision on this application, for reasons that will become apparent.
6. The decisive question is jurisdiction, which the Applicant insists that this Court is clothed with, and that must be resolved first, because, as Nyarangi JA held in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1, "jurisdiction is everything" and "without it, a court has no power to make one more step".
Analysis and Determination
7. The execution the Applicant seeks to stay, including the warrants of arrest, was not issued by this Court. It was issued in Nairobi Tribunal Case No. 439 of 2019, by a Tribunal other than the High Court. For that reason, Section 23 of the Insolvency Act becomes relevant. It provides as follows:
8. "23. (1) This section applies if an execution process has been issued by a court other than the High Court. (2) If it is proved to the issuing court that an application for a bankruptcy order in respect of the debtor has been made to the High Court, that court may either — (a) stay the execution process on such terms as it considers appropriate; or (b) permit the execution process to continue on such terms as it considers appropriate."
9. This provision should be read together with Section 2 of the Act which defines "the Court" to mean the High Court. Of importance is that the term “Court” is used consistently elsewhere in the Act. Section 23 conspicuously does not use it but speaks only of "the issuing court". That in my view is a deliberate choice, and it places the power to stay, or to permit the continuation of, an execution process issued by another court or tribunal in that court or tribunal, and not in the High Court.
10. This is exactly how Majanja J construed the same provision in James Mwangi Macharia v Gerald Ochoki alias Marube (Insolvency Cause No. E005 of 2019):
"A plain reading of section 23 of the Act shows that the provision applies where the execution process is issued by any other court other than the High Court. Further, the court empowered to stay any execution is the court that issued the process hence the use of the phrase 'issuing court'. In this case the execution process was issued by the Bomet Magistrates' Court and it is to that court that the Debtor must look to for relief."
11. On that basis, the debtor's own application before the High Court in that matter was struck out for want of jurisdiction. The holding applies with equal force here.
12. Section 23 of the current Act replaced Section 11 of the repealed Bankruptcy Act, which was considerably wider:
"11. (1) 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 allow them to continue on such terms as it may think just."
13. Section 11 allowed a stay by "any court in which proceedings are pending" while Section 23 allows it only by "the issuing court". That amendment was deliberate, and the cited case of PanAfrican Credit Finance Ltd v Hellen Chebet Koech, which was decided on the wording of Section 11, cannot be read across to Section 23. Flamco Limited & 5 others v Bank of Baroda (K) Limited is equally no assistance, as it did not concern execution issued by a subordinate court or tribunal.
14. I am satisfied, in agreement with In re Mary Nyambura Wanjohi (Insolvency Cause No. E001 of 2021) [2024] KEHC 573 (KLR), that jurisdiction to stay, or to permit the continuation of, the execution process in Nairobi Tribunal Case No. 439 of 2019, including the warrants of arrest, lies exclusively with the Tribunal, as the issuing court, once proof of the pending petition is placed before it. This Court cannot arrogate to itself a jurisdiction that Parliament has, in deliberate terms, placed elsewhere; to do so would be to rewrite, rather than interpret, the statute.
Disposition
15. Having so found, the Notice of Motion dated 12th March 2026 is hereby struck out with costs for want of jurisdiction.
DATED, SIGNED AND DELIVERED AT NAIROBI
THIS 21st DAY OF SEPTEMBER 2026.
F. MUGAMBI
JUDGE