Ayiro & another v Ouma

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUSIA** **HIGH COURT CIVIL MISC APPLICATION NO. E050 OF 2026** **1. EVERLYNE AKINYI AYIRO…………………………….. 1ST APPLICANT 2. FLORENCE MAKOKHA OKOTH ………………………. 2ND APPLICANT** **VERSUS** **PETER ODHIAMBO OUMA ………………………….…… RESPONDENT** **EX-PARTE RULING** **A. Introduction** 1. The Applicants, Everlyne Akinyi Ayiro and Florence Makokha Okoth, moved this Court through a Notice of Motion filed under a Certificate of Urgency dated 4th September, 2026. The Applicants seek an order to transfer their lower court files—specifically, Busia Small Claims Court Case Nos. E024 of 2023 and E025 of 2023—to the Busia Chief Magistrate's Court for execution purposes. 2. The material facts are set out in the supporting affidavit of their advocate, Mr. Erick Jumba. The Applicants separately filed claims before the Busia Small Claims Court for personal injuries sustained in a road traffic accident involving the Respondent's vehicle. Judgments were heard and entered in their favor on 15th January, 2024. The 1st Applicant was awarded Kshs. 800,000/= and the 2nd Applicant was awarded Kshs. 500,000/= in general damages, alongside costs and interest. Decrees were subsequently extracted to enforce these awards. 3. However, during the execution phase, the Small Claims Court Adjudicator, Hon. S.M. Njagi, issued a ruling declining to proceed with the execution. The lower court cited a binding three-judge bench High Court decision that stripped the Small Claims Court of jurisdiction over personal injury claims. 4. Faced with this jurisdictional gridlock, and matching it with urgent intelligence that the Respondent judgment debtor is actively preparing to relocate to Uganda to evade liability, the Applicants approached this Court for a transfer order to safeguard their hard-won decrees. **B. Procedural Frame: The Ex-Parte Consideration** 1. This application was placed before me during the court's recess under a Certificate of Urgency. Due to the immediate flight risk presented by the Respondent's imminent relocation across the international border to Uganda, this Court took a deliberate step to protect the subject matter of the dispute. 2. Exercising the statutory discretion of this Court, I have certified this application as extremely urgent and formally dispensed with its service upon the Respondent. The Court has proceeded to hear and consider the application on a strictly *ex-parte* basis. 3. This Court is firmly of the view that no prejudice whatsoever will be occasioned to the Respondent by determining this matter *ex-parte*. The Respondent's liability was already fully ventilated, tried, and conclusively determined on the merits in the lower court over two years ago. The Respondent chose not to participate in those primary proceedings, which were heard undefended. The current motion does not re-open the question of liability or increase the financial burden already decreed against him. It simply seeks to assign the existing decrees to a legally competent execution desk to satisfy an established debt. **C. Issues for Determination** 1. To ensure complete alignment with constitutional and statutory demands, this Court evaluates: 2. **The legal consequences of the recent High Court jurisdictional shift on final judgments that are already concluded and in the execution stage within the Small Claims Court.** 3. **Whether this Court should exercise its administrative and inherent authority to transfer the records to the Chief Magistrate's Court to give effect to the decrees.** **D. Analysis and Determination** 1. **The Jurisdictional Impasse and the Rule in the Gathaiya Case (2026)** 2. The execution standstill in the lower court follows the three-judge bench decision in *James Muriithi Gathaiya v Attorney General & 178 Others* *(Constitutional Petitions No. E008 & E010 of 2024 Consolidated)* [2026] KEHC 290 (KLR). In that landmark ruling delivered on 22nd January, 2026, the High Court declared that claims for compensation for personal injuries arising out of road traffic accidents are excluded from Section 12(1)(d) of the Small Claims Court Act. The bench directed that "all cases now pending" be transferred to the Magistrates' Courts with jurisdiction. 3. Acting on this precedent, Adjudicators correctly noted that execution is an ancillary, dependent offshoot of the primary claim. Because the Small Claims Court was divested of jurisdiction over the underlying personal injury subject matter, it was similarly divested of jurisdiction to entertain any execution applications arising therefrom. 4. **Preventing Judicial Absurdity and Protecting Vested Rights** 5. A sharp, intentional line must be drawn between ongoing personal injury suits that were caught mid-stream before trial, and those like the current matter, where final judgments and decrees were legally signed, sealed, and delivered before the *Gathaiya* decision was pronounced. 6. The Applicants' rights to compensation completely crystalized into legal debts on 15th January, 2024. Litigants who approached the Small Claims Court in good faith, guided by the literal text of Section 12 of the Parent Act, cannot have their valid final judgments transformed into unusable pieces of paper. To leave these decree holders in an permanent enforcement limbo simply because the law shifted post-judgment would be a flagrant violation of their constitutional right to access justice under Article 48 of the Constitution. 7. The three-judge bench in *Gathaiya* explicitly anticipated these practical difficulties and highlighted the need to shield innocent litigants from structural prejudice. The High Court position was further clarified on 20th February, 2026, by the High Court at Nakuru in *Kilonzo v Asembo* *(Civil Appeal No. E1037 of 2024)* [2026] KEHC 1945, which confirmed that the *Gathaiya* judgment was never intended to operate retrogressively to strip successful decree holders of their crystalized financial entitlements. The judicial system is required to provide an orderly, legal path to enforce these debts. 8. **Exercise of Transfer Authority under the Civil Procedure Act** 9. To achieve this objective, the Applicants have properly invoked Sections 1A, 3A, and the transfer provisions of the Civil Procedure Act. Section 3A of the Act explicitly protects the inherent power of the High Court to make any order necessary to meet the ends of justice and prevent an absolute failure of equity. 10. Furthermore, Section 1A anchors the overriding objective of civil litigation, commanding this Court to facilitate the efficient, just, and cost-effective resolution of disputes. A judgment that cannot be executed is a hollow victory. Because the Small Claims Court is statutorily paralyzed from enforcing these claims, this Court uses its inherent and supervisory powers under Article 165(6) of the Constitution to transfer the enforcement files to the Busia Chief Magistrate's Court. The Chief Magistrate's Court has full pecuniary and execution jurisdiction over these monetary tiers and can deploy the necessary civil enforcement remedies under Section 38 of the Civil Procedure Act to secure the Applicants' awards. **E. Final Orders** 1. In the upshot, the Applicants' Notice of Motion is highly meritorious. Given the urgent necessity to prevent the Respondent from crossing the international border to defeat justice, this Court allows the application *ex-parte*. 2. The following orders are hereby issued: 3. **This application is certified as urgent, service upon the Respondent is dispensed with, and the motion is allowed on an ex-parte basis.** 4. **The final Judgments and Decrees entered in Busia Small Claims Court Case No. E024 of 2023 and Case No. E025 of 2023 are hereby ordered to be transferred immediately to the Busia Chief Magistrate's Court for execution purposes.** 5. **The Deputy Registrar of this Court is directed to immediately recall the physical and electronic records from the Small Claims Court and transmit them directly to the Presiding Chief Magistrate at Busia.** 6. **The Busia Chief Magistrate's Court shall register the transferred files as active Civil Claims at Large and permit execution processes to proceed from the exact stage where the Small Claims Court downed tools.** 7. **The costs of this application shall be costs in the execution cause.** **Ruling signed, dated and delivered virtually at Busia This 8th day of September, 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** Mohochi S.M Presiding Judge