https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9840

Maina & Maina Advocates Llp v Macharia (Miscellaneous Civil Application 20 of 2013) [2026] KEHC 9840 (KLR) (Civ) (30 June 2026) (Ruling) Neutral citation: [2026] KEHC 9840 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Miscellaneous Civil Application 20 of 2013 SN Mutuku, J June 30, 2026 Between Maina & Maina Advocates Llp Advocate and Edward Mwangi Macharia Client Ruling Background 1.Mr. Edward Mwangi Macharia, the Applicant herein, has filed a Notice of Motion dated 21.04.2026 (the Motion) in which he has sought a substantive order to set aside/or discharge the warrants of arrest issued on 13.04.2026 in this matter. He has anchored the application under Sections 1A, 1B and 3A of the Civil Procedure Act (CPA); and Order 22, Rule 34 and Order 51, Rule 1 of the Civil Procedure Rules (CPR), The application is supported by grounds found on the body of the application and in the Supporting Affidavit. 2.The Applicant has stated that the warrants of arrest, arising from a claim of unsettled legal fees, were issued against him on 13.04.2026. That, consequently, he has received several phone calls from the police, inquiring on his whereabouts to enable them effect the said warrants. That the said warrants of arrest have been taken out in bad faith since he recently made several payments towards settling the decretal amount, which payments have not been deducted from or reflected in the sum indicated in the warrants and that the warrants are erroneous in terms of the amount sought against him. 3.The Applicant claims to be currently unemployed and therefore facing financial challenges in settling the outstanding decretal amount. That the arrest and committal to civil jail of a judgment debtor is regarded as a measure of last resort, which is reserved for debtors who have deliberately refused to satisfy a decree and that unless the prayers sought in the instant Motion are granted, the warrants of arrest will be executed, thereby limiting his right to liberty. Replying Affidavit 4.The Motion was opposed by Maina & Maina Advocates LLP, the Respondent through a Replying Affidavit sworn by Martin Maina on 30.04.2026 in which it is deposed that the court made a ruling on 23.09.2025 in respect of a Notice to Show Cause which was issued against the Applicant. That the Applicant was ordered to settle the balance of the decretal sum by monthly instalments, failing which the Notice to Show Cause would be automatically allowed and warrants of arrest would issue. That the Applicant made a payment on 13.11.2025 but thereafter failed and/or neglected to make subsequent payments. 5.It was deposed that the Applicant has, instead, issued sporadic cheques for January and March, 2026. That the Applicant has not been keen on settling the decretal sum which arose from a taxation ruling and that the issues raised in the instant Motion were previously canvassed in the ruling on the Notice to Show Cause, thereby making the said Motion res judicata. 6.It is similarly the Respondent’s averment that the amounts set out in the warrants of arrest were properly tabulated and that committal to civil jail is a lawful process and therefore, the Motion ought to be disallowed to pave way for reinstatement of the warrants of arrest. Parties’ submissions 7.The Motion was canvassed through written submissions. From the record, while Mr. Maina for the Respondent informed the court on 25.5.2026 that the Respondent had filed his submissions, I did noted that the said submissions were not on the CTS e-filing platform or a physical copy in the court file at the time of writing this ruling. 8.Submitting in support of the Motion, the Applicant relied, inter alia, on the decision in ABN Amro Bank v Le Monde Foods Limited Civil Application No. 15 of 2002 where it was held that execution must reflect the terms of the relevant decree, and the decision in Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd [2017] KECA 98 (KLR) where the Court of Appeal stated that execution proceedings ought to reflect accurate accounts. 9.The Applicant has submitted that the warrants of arrest issued in this matter are fatally defective for the reason that they contain erroneous accounts of the outstanding decretal sum. That, the interest tabulated therein is premised on the principal decretal amount and does not take into account the payments so far made by the Applicant in settlement of the decretal amount and that any and all paid sums ought to have been deducted from the sum claimed in the warrants of arrest, in tabulating the interest payable. 10.The Applicant has equally submitted that he has tendered sufficient material to demonstrate the payments so far made towards settling the decretal sum, including payments made in March, 2026. That this demonstrates good faith on his part in complying with the orders and conditions set by the court. He has urged the court to consider the Court of Appeal’s reasoning in the case of National Bank of Kenya Ltd v Anaj Warehousing Limited [2015] eKLR, which is restated in the case of Abdulrahman Sheikh Mohamed v E.A. Building Society [2019] eKLR that execution proceedings ought to accurately reflect the outstanding decretal sums owed and ought to take into account any sums already paid. 11.That in view of the fact that the warrants of arrest issued in this matter do not reflect the amounts so far paid by the Applicant towards settlement of the decree, the said warrants cannot be effected. 12.It is the Applicant’s further contention that committal to civil jail is a punitive measure of last resort which ought to be effected only in clear instances of a debtor’s deliberate and intentional refusal to settle the decretal sum. The Applicant cited Braeburn Limited v Gachoka & Another [2007] 2 EA 67 where it was held that committal to civil jail must be applied in a manner that adheres to constitutional limits and not in a manner that portrays harassment or oppression to a judgment debtor. The Applicant has likewise cited the case of Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd [1967] EA 287 to reiterate that imprisonment is a measure of last resort and urged the court to allow the Motion. Determination 13.I have considered the Motion, the grounds supporting it, the Replying Affidavit by the Respondent opposing the Motion and submissions of the Applicant. The Applicant did not avail copies of the authorities relied on. Some were not available at the Kenya Law database. 14.I have considered the issue raised by the Respondent that this matter is res judicata for reasons that the issues raised were previously raised and canvassed by the court during the hearing of the Notice to Show Cause. 15.The record shows that upon the court being moved by the Respondent, a Notice was issued against the Applicant on 19.03.2024 requiring him to show cause why execution should not proceed against him in recovery of the decretal sum of Kshs. 232,000/- plus costs and interest thereon, amounting to Kshs. 260,612.80, giving a total of Kshs. 493,302.80. The record shows that upon service of the notice to show cause, the Applicant swore a Replying Affidavit on 19.09.2024. Directions were issue to file written submissions thereon. The Court (Deputy Registrar) delivered a ruling on 23.09.2025 where she set conditions for payment of the outstanding decretal sum by way of instalments. 16.It is my considered view that the earlier court proceedings were in respect of a Notice to Show Cause, while the instant Motion concerns the competency of the resulting warrants of arrest. I have read Section 7 of the CPA which is the applicable provision on the above subject. It provides that:“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.” 17.Having applied this section to these proceedings, it is my finding that while both matters relate to the subject of execution, I am not persuaded that the nature of prayers sought are similar in order for the res judicata rule to apply. 18.I have invoked Section 3A of the CPA which reserves the inherent power of the court “to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the court.” While addressing that section, the Court of Appeal in Rose Njoki King’au & Another v Shaba Trustees Limited & Another [2018] eKLR stated as follows:“Also cited was Section 3A of the Civil Procedure Act which enshrines the inherent power of the Court to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the Court. In Equity Bank Ltd versus West Link Mbo Limited [2013], eKLR, Musinga, JA stated inter alia, that, by “inherent power” it means that“Courts of law exist to administer justice and in so doing, they must of necessity balance between competing rights and interests of different parties but within the confines of law, to ensure that the ends of justice are met. Inherent power is the authority possessed by a Court implicitly without its being derived from the Constitution or statute. Such power enables the judiciary to deliver on their constitutional mandate…..inherent power is therefore the natural or essential power conferred upon the court irrespective of any conferment of discretion.” 19.Further, the Supreme Court went a step further in the case of Board of Governors, Moi High School Kabarak and another v Malcolm Bell [2013] eKLR, to add the following:“Inherent powers are endowments to the court as will enable it to remain standing as a constitutional authority and to ensure its internal mechanisms are functional. It includes such powers as enable the Court to regulate its intended conduct, to safeguard itself against contemplation or descriptive intrusion from elsewhere and to ensure that its mode of disclosure or duty is consumable, fair and just.” 20.Flowing from the foregoing, it is evident that discretionary power of this court to grant or refuse to grant orders to setting aside or varying an order, judgment or any consequential decree or order, is discretionary, which discretion is wide, and unfettered and which ought to be exercised judiciously. 21.The rationale for the discretion to set aside as conferred on the court was spelt out in the case of Shah v Mbogo & another [1967] E.A 116 and reads as follows:“The discretion to set aside an ex-part judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.” 22.The Applicant’s main contention for seeking to set aside or discharge the warrants of arrest the claim that they do not reflect the accurate sums owed to the Respondent. He also claimed that despite being currently unemployed, he has made efforts to settle the decretal amount and that these payments have not been deducted from the sums indicated in the warrants of arrest and that the warrants of arrest have been taken out in bad faith and with ill-intent on the part of the Respondent. 23.In contrast, the Respondent has averred that, conditions were set by the court in respect of a Notice to Show Cause, but that the Applicant has failed to comply with the said conditions by defaulting in his instalment payments from the month of December, 2015. 24.The record is clear that in the ruling delivered on 24.11.2017, this court entered judgment in favour of the Respondent, against the Applicant to the tune of Kshs.232,690/- plus interest at 14% p.a. from 25.02.2016 and costs thereon, pursuant to an Advocate-Client Bill of Costs dated 4.07.2013 resulting in issuance of a Certificate of Taxation on 18.01.2015. 25.Consequent to a Notice to Show Cause filed by the Respondent, the Honourable Deputy delivered a ruling on 23.09.2025 where she granted leave to the Applicant herein to settle the decretal sum by a down payment of Kshs. 55,000/- to be made within seven (7) days after that ruling, and thereafter payment in equal monthly instalments of Kshs. 40,000/- on the 1st day of each month beginning October, 2025 until payment in full and that in default, the Notice to Show Cause dated 19.03.2025 would stand automatically allowed and warrants of arrest would issue against the Applicant. The record discloses that warrants of arrest were issued against the Applicant on 13.04.2026 for a total sum of Kshs. 515,919/- which warrants the Applicant is now seeking to challenge. 26.My review of the material on record shows that the Applicant issued a cheque in favour of the Respondent, dated 1.10.2025, for a sum of Kshs. 55,000/- as shown in Annexure “EM-2” found in Supporting Affidavit to the Motion. This was in compliance with the first condition set by the learned Deputy Registrar in her ruling. The Respondent has not denied receipt of the above cheque. 27.From my further review of the record, I observed that the Applicant tendered copies of two (2) additional cheques, namely:a.A cheque dated 25.02.2026 for a sum of Kshs. 30,000/-b.A cheque dated 31.03.2026 for a sum of Kshs. 20,000/- 28.These payments were not in compliance with the specific terms of the aforesaid ruling. There is nothing to support if there were payments made by the Applicant for the months of October, November and December, 2025 and for the month of January, 2026. 29.I have noted that while the Respondent has stated in his Replying Affidavit that the first payment made by the Applicant was on 13.11.2025, none of the parties has specified the amount paid on the said date, or tendered material supporting the said payment. Moreover, while the Respondent has averred that the Applicant made a payment on 10.01.2026 for a sum of Kshs. 10,000/- there is no supporting material on record. 30.In my view therefore, it is evident that the Applicant has defaulted in certain instalment payments or has paid a lesser sum than what was ordered by the court. Taking this factor into account and going by the terms of the ruling delivered on 23.09.2025, the Respondent was well within his rights to proceed with execution. There is also nothing on record to indicate that the terms of the material ruling have either been varied, set aside or otherwise challenged. 31.On the other hand, it cannot be overlooked that the Applicant has nevertheless made certain payments which ought to have been taken account in tabulating the amount being pursued by way of the warrants of arrest. There is nothing to indicate that any payments so far made were factored in or deducted from the total sum sought in the said warrants. It therefore follows that the warrants of arrest issued are erroneous in terms of the amounts indicated as being sought therein. 32.In regard to whether the warrants of arrest would curtail the Applicant’s right to liberty if effected, it is acknowledged that arrest and committal to civil jail is a measure of last resort given that it has the impact of limiting a person’s right to liberty. It is also acknowledged that a decree holder is entitled to enjoy the fruits of its judgment and is naturally entitled to commence or proceed with the execution process. 33.In the present instance, I have noted from the record that the issue pertaining to the Applicant’s financial status was canvassed before the learned Deputy Registrar where the Applicant indicated his willingness to settle the decretal amount by way of monthly instalments. It is therefore my view that the conditions set by the learned Deputy Registrar were made upon consideration of the evidence presented before her. In any event and as earlier mentioned, the above-referenced ruling has neither been varied nor set aside and hence the terms thereof still stand. 34.Upon considering and balancing the rights of the parties in this matter, I am persuaded to exercise my discretion in favour of the Applicant by granting him a final opportunity to comply with the terms set out in the ruling of the Honourable Deputy Registrar. Consequently, the Notice of Motion dated 21.04.2026 is hereby allowed on the following terms:a.The warrants of arrest issued on 13.04.2026 be and are hereby set aside for failing to factor in payments so far made by the Client/Applicant.b.That the Client/Applicant shall comply with the terms of the ruling delivered on 23.09.2025 by making payments by equal monthly instalments of Kshs. 40,000/- due on the 1st of each month, from the month of August, 2026 until payment in full.c.In default of compliance with the above order, the warrants of arrest shall issue against him.d.Each party shall bear its own costs of the Motion. 35.It is so ordered. DATED, SIGNED AND DELIVERED THIS 30TH JUNE 2026.S. N. MUTUKUJUDGE