https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11999

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CIVIL APPEAL NO. E166 OF 2025** **JULIUS KAILIKIA……………… APPELLANT** **Versus** **TARTISIO GITUMA M’THIRINGI ……………1st RESPONDENT** **OBRAIN SUPER MOTORS LIMITED …………….2nd RESPONDENT** **JAMES MUTEMBEI ……………. 3rd RESPONDENT** **JUDGEMENT** **Introduction** 1. This appeal arises out of the ruling and order of the Magistrates Court in Meru CMCC No. 80 of 2012 delivered on 26/08/2025. Being dissatisfied with the decision of the trial court, the Appellant instituted this appeal vide a memorandum of appeal dated 26/08/2025 on grounds that the learned trial magistrate erred in law and in fact in committing the Appellant to civil jail without satisfying itself that the conditions stipulated in section 38 of the Civil Procedure Act and Order 22 rule 34(2) of the Civil Procedure Rules had been met 2. The appellant prays for the appeal to be allowed, the order committing the appellant to civil jail be set aside and the court order the release of the Appellant from civil jail and be awarded costs of this appeal. 3. The appeal was canvassed by way of written submissions but at the time of writing this judgement, only the 1st Respondent had complied. **1st Respondents submissions** 1. The 1st Respondent in his written submissions dated 26/05/2026 opposes the Appeal and contends that the trial court's ruling delivered on 26th August 2025, committing the Appellant to one-month civil jail for failure to honour the decree, was properly arrived at upon carefully listening to, analyzing, and critically considering the proceedings preceding the ruling. The Respondent argues that judgment was entered on 21st November 2018 over seven years ago, and to date the Appellant has only paid a paltry sum of slightly over Kshs. 100,000/- towards a decretal sum of over Kshs. 1,207,527/- (which continues to accrue interest), and after the court gave the Appellant over three months to settle the decretal sum, he deliberately failed to remit a single cent. 2. On whether the trial court satisfied the conditions laid in Section 38 of the Civil Procedure Act and Order 22 Rule 34(2) of the Civil Procedure Rules, the 1st Respondent submitted that the trial court established that the Appellant willfully refused and/or neglected to satisfy the decree despite having the means to pay, and the committal to civil jail was upon careful examination of the facts and the law. The Respondent relied on several authorities including ***Braeburn Limited v Schoka & Another* [2007] eKLR**, and ***Kensalt Limited v Water Resources Management Authority* [2007] eKLR**. The Respondent submitted that the conditions under Section 38 were met because the decree remains unsatisfied, the Appellant is aware of the decree, the Appellant has means and/or resources to satisfy the decree, and the Appellant's refusal to pay is deliberate and unjustified. 3. The Respondent further submitted that there cannot be a cause of action founded on a lawful exercise of the right of execution, as it would be a serious contradiction to suggest that a creditor enforcing his right would be stopped by citing strictly adhered to provisions of the law, and prayed for the appeal to be dismissed. **Analysis and determination** 1. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. 2. In ***Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR*** the Court of Appeal stated that: ***“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”*** 1. In view of the above, I have perused and considered the evidence adduced before the trial court, grounds of appeal together with the available submissions by the parties and consider the only issue for determination being whether the Appellant’s committal to civil jail was proper. 2. It is settled law that committal to civil jail is a serious interference with a person's liberty. Therefore, courts must strictly comply with the procedural safeguards provided under the law. 3. Section 38 of the [*Civil Procedure Act*](https://new.kenyalaw.org/akn/ke/act/1924/3) empowers the court upon application by a Decree Holder, in this case, the 1st Respondent, to order execution and one of the means of execution is arrest and detention of the Judgment Debtor in prison. That section provides as follows; “Subject to such conditions and limitations as may be prescribed, the Court may, on application of decree holder, order execution of the decree – (a) by delivery of any property specifically decreed, (b) by attachment and sale, or by sale without attachment of any property, (c) by attachment of debts (d) by arrest and detention in prison of any person (e) by appointing a receiver or (f) in such other manner as the nature of relief granted may require. Provided that where the decree is for 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. (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 of money which the judgment debtor was bound in a fiduciary capacity to account.” 1. Order 22 Rule 34 of the Civil Procedure Rules elaborates on the same requirements and provides as follows: *"(1) Where a judgment-debtor appears before the court in obedience to a notice issued under rule 31, or is brought before the court after being arrested in execution of a decree for the payment of money, and it appears to the court that the judgment-debtor is unable, from poverty or other sufficient cause, to pay the amount of the decree, or, if that amount is payable by instalments, the amount of any instalment thereof, the court may, upon such terms as it thinks fit, make an order disallowing the application for his arrest and detention or directing his release, as the case may be.* *(2) Before making an order for the committal of the judgment-debtor to prison, the court, for reasons to be recorded in writing, shall be 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 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."* 1. What emerges clearly from the above provisions is that committal to civil jail is not an automatic or ordinary mode of execution. Because it deprives a person of his liberty on account of a civil debt, the law requires that, before such an order is made, the court must be satisfied that the judgment debtor has, or has had, the means to pay the decretal sum or a substantial part of it, and has refused or neglected to pay the same. Mere failure to pay, or poverty, or inability to pay, is not by itself a ground for committal. 2. In ***Charles Lutta Kasamani v Concord Insurance Co Ltd & Another [2018] eKLR*** the court stated as follows; ***“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.”*** 1. Of particular significance is that this is not the first time this very dispute has come before this Court on the question of the Appellant's committal to civil jail. In an earlier appeal, ***Kailikia v M'Thiringi & 2 Others; Civil Appeal E017 of 2024; [2024] KEHC 5860 (KLR),*** Muriithi J considered an appeal against an order of the same trial court committing the Appellant to civil jail on 5/2/2024. The learned Judge set aside that order after finding that the trial court had not recorded any reasons demonstrating that the Appellant had the means to pay and had refused or neglected to pay the decretal sum; the committal had been founded solely on the fact that the Appellant had not made any payment and that his proposal for instalment payments had been opposed by counsel for the Decree Holder. The learned Judge held, in terms this Court respectfully associates itself with, that: ***"The order for committal to civil jail is not a blackmail tool to compel compliance with, or enforcement of, a judgment... [It] is a penal enforcement measure only available where the court is satisfied that the debtor is a man of the means who has refused or neglected to pay or otherwise comply with a lawful judgment. Any other use of the weapon of committal to civil jail, say for a person who is merely unable to pay, would be unlawful..."*** 1. Turning to the present appeal, the record of the trial court's proceedings on 10th June 2025 demonstrates that the Appellant was sworn and examined regarding his financial status. He testified that he is a teacher with a net salary of Kshs. 16,666/=. He also detailed his financial obligations, including bank loans and school fees for his children in university, extra-county, and primary schools. Following this, he proposed to liquidate the debt by paying Kshs. 8,000/= monthly. The trial magistrate deemed this proposal "too low" in view of his other financial obligations, observing that he had seemingly not prioritized the liquidation of the debt. The court reserved its ruling on the proposal and ordered him to arbitrarily reduce the debt by Kshs. 100,000/= before the next mention date. 2. On the ruling date of 26th August 2025, the Appellant had managed to deposit Kshs. 16,000/= instead of the Kshs. 100,000/= ordered. Noting his failure to pay the full ordered lump sum or provide a better proposal, the trial court instantly committed him to civil jail for one month, concluding that he had *"declined to participate in liquidation of his decree."* 3. It is true that the trial court's earlier observations on 10/6/2025, that the Appellant's disclosed capacity to pay school fees of about Kshs. 100,000/= per term sat uneasily with his offer of only Kshs. 8,000/= per month towards the decree, could, if properly carried through, have grounded a finding of means under section 38(2)(b) of the Civil Procedure Act. However, the trial court did not make that finding at the time. It expressly reserved its ruling and instead imposed a fresh payment condition. When the matter returned on 26/8/2025, the committal that followed was anchored on non-compliance with that condition, not on a renewed and reasoned finding on means. 4. I am not unmindful of the Respondent's position. The underlying judgment is now over seven years old, the Appellant has previously escaped committal on a technical ground, and his cumulative payments since 2018 remain modest relative to a decretal sum that continues to attract interest. A decree-holder is entitled to the fruits of his judgment, and the courts should not permit the process of execution to be indefinitely frustrated. These are legitimate concerns which the trial court remains at liberty to address through the ordinary tools of execution available to it. 5. However, precisely because committal to civil jail deprives a person of his liberty, the safeguards in section 38 of the Act and Order 22 Rule 34 of the Rules must be strictly complied with. Having considered the record as a whole, I find that the reasons recorded by the trial court in its ruling of 26/8/2025 do not sufficiently establish that the Appellant has, or has had, the means to pay the decretal sum or a substantial part of it and has refused or neglected to do so. The order of committal cannot, therefore, stand. **Disposition** 1. The upshot of the above is that; 1. The appeal is hereby allowed; 2. The ruling and order of the trial court delivered on 26th August 2025 in Meru CMCC No. 80 of 2012 committing the Appellant to civil jail is hereby set aside; 3. Considering the circumstances of this case, each party shall bear their own costs of this appeal. It is so ordered. Right of appeal 28 days. Dated, signed and delivered virtually on TEAMS at Nairobi on this 31st day of July, 2026. **……………………………** **Hon. R. A. Oganyo, Mrs.** **Judge.** **In the Presence of; -** Court Assistant…E, Sana