https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7785

Ochich v Mburugu (Civil Appeal E266 of 2024) [2026] KEHC 7785 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEHC 7785 (KLR) Republic of Kenya In the High Court at Eldoret Civil Appeal E266 of 2024 E Ominde, J June 3, 2026 Between George Ochich Appellant and Mary Mburugu Respondent (Being an Appeal from the ruling of Hon Mikoyan, CM) delivered on 13th November 2024 in Eldoret CMCC Misc. Civil Suit No. E029 of 2022) Judgment 1.This appeal arises from the ruling of the trial court in Eldoret CMCC Misc. Civil Suit No. E029 of 2022 where the trial court issued a Warrant of Arrest in execution of decree against the appellant herein. 2.The brief background underlying the appeal is that the Respondent obtained an order against the Appellant in the Rent Restriction Tribunal Case No. 05 of 2021 where judgment was entered for the sum of Kshs. 176,000/- plus unpaid water bill of Kshs. 7,000/- on 9th December 2021. The Respondent then moved the trial court vide a Notice of Motion dated 3rd March 2022 seeking to have the order adopted as an order of the court. The trial court then issued an order on 3rd August 2022 adopting the said order from the tribunal in order to allow the respondent execute the same. 3.A Notice to Show Cause was then issued to the Appellant as to why execution should not issue for the sum of Kshs. 234,500/-inclusive of the cost of execution and court collection fees. The Appellant filed an Affidavit to show cause dated 26th March 2024 where he pleaded that on or about 10th March 2023, he called Mr. Nathan Tororei, Advocate, who was acting for the plaintiffs and requested for an amicable settlement of the matter by way of payment in instalments. The said advocate promised to get back to him after discussing the request with his associate, but the advocate went completely quiet, only for the plaintiffs advocates to serve him with a Mention Notice dated 6th November 2023. He annexed and marked as “GO-2” a copy of the Mention Notice. 4.He deponed that when the matter came up for mention on 21st February 2024, he brought to the attention of the Court that he had placed a request to the plaintiffs’ advocates for an amicable settlement. That by the letter dated 12th March 2024 sent to the plaintiff’s advocates, he expressed a formal proposal to settle the said debt by way of monthly instalments of Kshs 7,000/= commencing on 15th April 2024 until payment in full. 5.He annexed and marked “GO-3” and “GO-4” copies of the said letter and the forwarding email. Further, that he is completely unable to pay the debt herein all at once due to current financial deficits, and financial constraints and commitments and which he has laboured under for the last five or so years, including his children’s school and university fees, caring for his aged and sickly parents, and unavoidable life’s recurrent expenses. He annexed and marked as “GO-5” copies of documents evidencing the same. 6.He averred that he was able to pay the debt over an extended period of time, if granted the opportunity to do so. He prayed the court allow him to pay the decretal sum in instalments of Kshs 5,000/= per month until payment in full. The matter then came up for hearing on 13th November 2024 where Counsel for the Respondent submitted that there was a proposal to pay Kshs. 7,000/- per month which she stated was unreasonable and no single amount had been paid to date. She stated that they were amenable to accepting half the amount on the said date and the balance paid thereafter. 7.The Appellant submitted that the new taxes had raided his payslip and he was unable to pay anything more. The trial magistrate then found that there being no reasonable proposal towards satisfaction of the decree, warrants of arrest were to issue in execution of the decree. Being aggrieved with the decision of the trial court, the Appellant instituted the present appeal vide a memorandum of Appeal dated 9th December 2024 premised on the following grounds;1.The Learned Honourable Magistrate erred in law and fact by upholding the Notice to Show Cause that was unlawful and incurably defective by reason of the said Notice to Show Cause having unjustifiably inflated the decretal debt by a whole Kshs 51,500/= from the lower sum of Kshs 183,000/= to the grossly higher sum of Kshs 234,500/=.2.The Learned Honourable Magistrate erred in law and fact by arriving at a decision that was clearly preconceived, utterly biased and arbitrary.3.The Learned Honourable Magistrate erred in law and fact by imposing a decision latently based on his own preconceived position, and in total disregard of the facts and circumstances of the case that was before him and in total disregard of the submissions of the parties.4.The Learned Honourable Magistrate’s erred in law and fact by failing to exercise his discretion in line with the hallowed principle that judicial discretion must always be exercised judiciously.5.The Learned Honourable Magistrate erred in law and fact by failing to objectively consider the Affidavit to Show Cause that had been sworn by the respondent on 26th March 2024.6.The Learned Honourable Magistrate erred in law and fact by failing to objectively or at all consider the Grounds of Opposition dated 26th March 2024 that had been filed by the appellant.7.The Learned Honourable Magistrate erred in law and fact by being high-handed and heavy-handed and arriving at a decision that was unnecessary, drastic and grossly disproportionate in the circumstances of the case that was before him.8.The Learned Honourable Magistrate erred in law and fact by arriving at a decision that was casual and completely unreasoned.9.On the whole, the impugned decision and order of the Learned honourable magistrate is unjust and without sound basis in law and fact in the circumstances. 8.The Parties were directed to file submissions but at the time of writing this decision, only the Appellant had filed submissions. Appellants’ Submissions 9.The Appellant submitted that the impugned warrant of arrest was founded upon an unlawful and defective Notice to Show Cause. Counsel urged that the Notice to Show Cause was unlawful and defective for the reason that the respondent had unjustifiably inflated the decretal debt from the lower sum of Kshs 183,000/= to the grossly higher sum of Kshs 234,500/= which was an inflation by Kshs 51,500/=. He urged that the root of the said Notice to Show Cause is the order of the Rent Restrictions Tribunal dated 10th December 2021 and on the face of the said order, the amount of the debt that the appellant was ordered to pay and that it is that order that was later adopted by the trial court for purposes of execution. 10.Counsel submitted that however, at the point of execution, the respondent inflated that said decretal sum and took out the said Notice to Show Cause dated 8th August 2022 in which the respondent stated the amount of the debt due as being Kshs 234,500/=. The said Kshs 234,500/= is higher than the said Kshs 183,000/= by Kshs 51,500/= and the respondent did not justify the said excess amount of Kshs 51,500/=. Further, that the respondent did not explain how she arrived at that higher figure of Kshs 234,500/=. 11.Counsel submitted that it was incumbent upon the respondent to give a breakdown of how the excess figure of Kshs 51,500/= was arrived at and further, that it was incumbent upon the respondent to involve the appellant to participate in the process of arriving at the said excess figure of Kshs 51,500/=. He urged that in the absence of an explanation of how the said higher figure was arrived at, the said Kshs 234,500/= remains arbitrary and, therefore, unjustifiable, defective and unlawful. Further, and in the absence of any explanation on the part of the respondent, the respondent’s move to inflate the decretal debt as aforesaid was a deliberate move through which the respondent sought to unjustly enrich herself. 12.Counsel pointed out that in ground 1 on the face of the Grounds of Opposition dated 26th March 2024, the appellant had opposed the said Notice to Show Cause for having “irregularly and unlawfully enhanced the debt to Kshs 234,500/= contrary to the amount contained in the decree.” In the light of the foregoing, it was erroneous for the trial magistrate to rely upon the said Notice to Show Cause as the basis for the issuance of the said warrant of arrest that has been impugned through the instant appeal. 13.Counsel urged that the exact amount of the decretal debt in respect of which the respondent sought to execute the impugned warrant of arrest has been convoluted through conflicting and defective documents as follows: a) Firstly, and on the one hand, in the said Notice to Show Cause dated 8th August 2022 that the respondent had filed in the said Eldoret CMCC Misc. Civil Suit No. E029 of 2022, the respondent had stated the amount of the decretal debt as being Kshs 234,500/= 14.That secondly, and on the other hand, in the said Eldoret CMCC Misc. Civil Suit No. E029 of 2022, the respondent had also filed the draft warrant of arrest for the court’s signature. In the said draft warrant of arrest, the respondent had stated the total decretal debt, including costs, as being Kshs 214,500/=. He submitted that it is evident that the respondent is pursuing the recovery of two different sums of money, namely: Kshs 234,500/= and Kshs 214,500/=. Thus, the exact amount of the decretal debt remains convoluted, vague, grey, clouded and unknown. 15.That as a consequence, it would be impossible for the appellant to know the exact amount of the debt that he would be required to pay to enable him avert being arrested pursuant to the said warrant of arrest. That the vagueness, greyness and/or cloudiness of the exact amount of the debt as aforesaid also renders the said warrant of arrest to be susceptible to abuse, as the appellant will not know the amount of the debt he has to pay in order to avoid being arrested in execution of decree. That such an unknown amount of the decretal debt renders the debt to be like a moving target that may be impossible to satisfy. 16.Further, that proceeding with the execution process in the circumstances may occasion an abuse by reason of the fact that the appellant may be deprived of his liberty on the strength of defective documents and an undefined decretal debt which is like a moving target. Thus, it is in the interest of justice that the said defective, unlawful and unjustifiable warrant of arrest be set aside to avert the said possible abuse. Counsel faulted the trial magistrate for having arrived at a decision that was clearly preconceived, utterly biased and arbitrary. That this was because the learned trial magistrate did not supply any explanation to lay a basis for his decision to issue the impugned warrant of arrest. 17.Counsel contended that the decision was preconceived is based on the fact that the trial magistrate totally disregard the facts and circumstances of the case that was before him. The learned trial magistrate also totally disregarded the submissions of the parties. He listed two examples from the record to wit; that the appellant had prayed to the trial court to consider the response that the appellant had filed in court and render a ruling thereon but the trial magistrate completely ignored those submissions and made no mention at all about them. 18.Further, that the respondent did not oppose the appellant’s offer to pay the decretal sum in instalments and the respondent did not file any affidavit or grounds of opposition in opposition to the proposal that the appellant had placed before the trial court to be allowed to pay the decretal sum in instalments. In fact, the respondent had in effect submitted that she was agreeable to the appellant making an initial part payment and further payments “thereafter.” 19.Counsel urged that the magistrate’s decision was not informed by the facts and circumstances of the case that was before him, and that the decision stood oddly inconsistent with the case that the parties had presented before the trial magistrate. He urged that when a court makes a decision in the manner in which the trial magistrate made the impugned decision and in total disregard of the submissions of the parties then it is trite to conclude that such a decision was based on the trial court’s preconceived position. 20.Counsel urged that the trial court improperly exercised discretion and further, that the trial magistrate failed to objectively consider the Affidavit to Show Cause that had been sworn by the appellant on 26th March 2024. The appellant had sworn the said affidavit in answer to the said Notice to Show Cause dated 8th August 2022 which had required the appellant to show cause “why execution should not issue against him.” Through the said affidavit, the appellant offered explanations to showed cause why execution should not issue against him. 21.That the trial court completely ignored the appellant’s said explanations and the trial magistrate made no mention at all of the said affidavit or the explanations and plea therein. He reiterated that the learned trial magistrate approached the appellant’s case without any measure of objectivity and further, urged that the manner in which the learned trial magistrate proceeded manifested a subjective and non-judicious exercise of judicial discretion. 22.Counsel urged that the trial magistrate failed to consider the appellant’s Grounds of Opposition dated 26th March 2026, and were e-filed in court on 24th July 2024. The Appellant had pointed out that the respondent had “irregularly and unlawfully enhanced the debt to Kshs 234,500/= contrary to the amount contained in the decree.” Thus, the said Grounds of Opposition had highlighted the unlawfulness and defectiveness of the said Notice to Show Cause. He submitted that the trial court completely ignored the said Grounds of Opposition. 23.Counsel submitted that the law, as expressed under Order 21 Rule 12(2) of the Civil Procedure Rules, 2010 as read together with Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, CAP 21 of the Laws of Kenya, grants every court the discretion to allow a debtor in a liquidated money decree to pay the decretal sum by way of instalments. It is in line with the said provision of law that the appellant pleaded with the trial court to grant him the opportunity to pay the decretal sum in instalments. He reproduced paragraphs of the said Affidavit to Show Cause and urged that it should have been proper for the trial court to consider and render a decision on the appellant’s prayer to be allowed to pay the decretal debt in instalments. The learned trial magistrate should have objectively considered the appellant’s prayer and granted a decision on the said prayer. 24.Counsel submitted that the learned trial magistrate arrived at a decision that was casual and completely unreasoned. That the manner in which the learned trial magistrate rendered his decision appeared more like the learned trial magistrate had formed the opinion that he simply needed to decide the matter in the manner he did. Further, that the impugned decision was unjust and without sound basis in law and fact. He prayed that the appeal be allowed with costs pursuant to Section 27 of the Civil Procedure Act, CAP 21 of the Laws of Kenya. Analysis & Determination 25.Having considered the pleadings as well as the submissions filed, it is my considered opinion is that the only issue that arises for determination is;Whether the trial court erred in issuing orders for execution against the Appellant 26.The duty of the first appellate court is as set out in the case of Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR wherein the court stated as follows-“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 27.In a nutshell, in the instant case, the Appellant was served with the Notice to Show Cause and he filed an Affidavit to show cause as to why execution should not issue. He gave a payment proposal but never made any payments prior to the Notice and made a further proposal in court. In this regard, I am satisfied that the court correctly exercised its discretion and found that he had not shown sufficient cause as to why execution should not issue having defaulted in fulfilling a promise that he himself gave. 28.However, the court notes that the main issue of contention, and which is the subject of this appeal, that the exact amount due was at variance and that the final amount for which a warrant for his arrest and committal to civil jail was higher by Ks. 51, 500/- as already herein summarised, has not at all been denied and or contradicted by the Respondents who did not file any response whatsoever to this appeal and did also not file any submissions. It follows therefore that this appeal stands as unopposed. Accordingly, on a balance of probabilities, the court now hereby finds in favour of the Appellant. 29.Consequently, the Appellant’s Appeal is allowed and the decision of the Hon D. Mikoyan, CM delivered on 13th November 2024 in Eldoret CMCC Misc. E029 of 2022 to the extent that the said decision and order issued a warrant of arrest against the Appellant herein is now hereby set aside and vacated. 30.The court further directs that the amount due and payable to the Respondent as a consequence of the decision of the Rent Restriction Tribunal that was adopted as a judgement of the court by the Hon Chief Magistrate amounts to a total of Ks. 183, 000/- which the Appellant as he has prayed, is now hereby allowed to liquidate in monthly instalments of Ks. 5000/- per month with effect from the date of this judgement. Costs shall be in the cause READ DATED AND SIGNED VIRTUALLY AT BUNGOMA ON 3RD JUNE 2026E. OMINDEJUDGE