https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7166

Maingi v Ndolo (Civil Appeal E112 of 2025) [2026] KEHC 7166 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 7166 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E112 of 2025 NIO Adagi, J May 14, 2026 Between Moses Maingi Applicant and Juliet Nzula Ndolo Respondent Ruling 1.Before me for determination is the Appellant’s Notice of Motion application dated 7/5/2025 brought under the provisions of Section 38 of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules, 2010 and Article 159 of the Constitution 2010. 2.The Applicant Moses Maingi seeks from this court orders:a.Spentb.Spentc.That there be a stay or suspension of the orders of committal made on 6/5/2025 committing the Applicant to civil jail pending hearing and determination of this application.d.That be a stay or suspension of the orders of committal made on 6/5/2025 committing the Applicant to civil jail pending hearing and determination of appeal.e.Costs do abide the application. 3.The application is supported by the affidavit of the Joseph Tamata, counsel for the Applicant and on the major ground that the Applicant was on 6/5/2025 committed to civil jail for a period of one (1) month by Hon. M. Thibaru, Adjudicator, Machakos Small Claims Court in SCCCOMM No. E028 of 2023 for his failure to satisfy the decree and judgment of that court. 4.Being dissatisfied with the said committal order, the Applicant has preferred an appeal to this court via a memorandum of appeal dated 6/5/2025 which appeal he avers is arguable and has high chances of success. 5.The Applicant contends that should the application not be granted, the appeal shall be rendered nugatory as he would have served the prison term since it is highly unlikely that the appeal will be heard and determined before the Applicant fully serves the civil jail term, and that he will suffer irreparably as there is no way to compensate him by an award in damages for the jail term that he would have served. The Applicant also avers that execution was pursuant to a monetary decree. The trial court ordered that the entire decretal amount be paid before his release from the civil jail. 6.The Applicant further avers that the order committing him to civil jail is manifestly unjust as he was not allowed to Show Cause why he should not be committed to civil jail including allowing him to demonstrate his means of income by filing an affidavit of means. The Respondent did not pursue any alternative remedies under Section 38 of Civil Procedure Act for enforcement of a monetary decree of the court and that the Hon. Adjudicator wrongly exercised her discretion where there was none and where it was improper to do so. 7.The Applicant has proposed to settle the decretal amount by monthly instalments of Kshs.30,000/= which proposal was declined by the trial court. The Applicant states that he is ready to be bound by any condition (security) as the court may direct for performance of the decree or order. 8.The Respondent opposes the application through the Replying Affidavit sworn on 12/5/2025 contending that application is fatally defective, frivolous, lacking in merit, an abuse of the court process, and is deliberately calculated to defeat justice and delay the lawful enjoyment of a judgment obtained in her favour. 9.The Respondent states that the Applicant is a person of immense means, extremely rich with considerable wealth and resources, yet he has wilfully declined to satisfy the judgment of the Honourable Court and has been bragging that he knows people in the Judiciary and the respondent will do nothing to recover her money which was business money. This can be attested by the proclamation notices done by the Auctioneers and it is known to her by her own knowledge that the Appellant has motor vehicles and he is running several businesses. 10.The Respondent further stated that the present application is simply the Appellant's latest attempt to frustrate the execution of a valid judgment. He has had several opportunities to be heard, to pay, and to negotiate settlement, but has chosen at every turn to ignore, disobey or abuse the process. 11.That the Applicant has shown himself to be dishonest, violent, and a flight risk. Releasing him or suspending the order will only embolden him to further frustrate justice. 12.The parties’ respective advocates appeared before me on 13/5/2025 and argued their respective client’s positions orally, restating what is contained in the application and the Replying Affidavit. 13.Mr Tamata representing the Applicant/Judgment Debtor emphasized that his client was not examined on his means of income before the committal and that he had agreed to settle the decretal amount by monthly instalments of Ksahs.30,000/=. The Respondent had not in the Replying Affidavit exhibited any evidence that the Applicant is a person of means. There was no proof of the alleged motor vehicles and several businesses. The advocate submitted that the Applicant has filed an appeal against the committal order which appeal has high chances of successwhich appeal shall be rendered nugatory unless the orders herein sought are granted. 14.He argued that the committal to jail should not be used as a black mail tool for compelling the Applicant to settle the decree. His client is ready and willing to abide by conditions to be imposed by the court for grant of the orders sought. 15.In opposing the application, Ms Nyabisi holding brief for Mr. Nthiwa advocate for the Respondent /Decree Holder submitted, relying on the Replying Affidavit dated 12/5/2025 as detailed above and maintained that the lower court judgement was delivered on 27/4/2023 and up to date the Applicant has not paid the decretal sum. The Applicant failed to enter appearance and attend court proceedings. He filed an application for stay of execution which was allowed and the Applicant proposed to pay instalments of Kshs.50,000/= per month but he failed to keep his bargain. He was later ordered to pay Kshs.100,000/= again he failed to pay. When the Auctioneers went to the Applicant’s premises to execute, he threatened them with a gun. The Respondent’s advocates applied for Warrants of Arrest and when a police officer went to execute the warrants he was also threatened by the Applicant. She argued that the Appellant is crafty, violent and a dangerous person. That the Applicant is a flight risk and the moment he is released he may escape and not pay the decretal sum. She opposed the proposal to pay the amount by instalments and contended that the Applicant is a man of means and runs several businesses. 16.I have carefully considered the application, the grounds and supporting affidavit coupled with the able submissions by the Applicant’s counsel Mr Tamata. I have also considered the Respondent’s Replying Affidavit and the able submissions by her counsel Ms. Nyabisi. 17.The only issue for determination in my view, is whether the Applicant has made out a case for stay of or suspension of the order of Hon. M. Thibaru, Adjudicator, Machakos Small Claims Court in SCCCOMM No. E028 of 2023 for his failure to satisfy the decree and judgment of that court pending hearing and determination of an appeal against the Adjudicator’s decision. 18.The applicable law for stay of enforcement of an order or decree pending appeal is Order 42 Rule 6 of the Civil Procedure Rules, and the principles set there under guiding the grant of stay of execution pending appeal are settled. These principles are:-The court must be satisfied that substantial loss may result to the applicant unless the order is made;-that the application has been made without unreasonable delay;-and such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant. 19.In granting or refusing stay of execution pending appeal, the court exercises discretion which discretion must, however, be based on sound judicial principles, as espoused in Sections 1A and 1B of the Civil Procedure Act, which sections espouse the overriding objectives of the law, thereby enlarging the conditions under Order 42 Rule 6(2) of the Civil procedure Rules for stay pending appeal. 20.On substantial loss the Applicant’s counsel contended that committal to Civil Jail once served cannot be reversed or compensated by damages and that the applicant will be prejudiced if he serves the jail term of one month only for this court to reverse the committal order, which will, in essence render the appeal nugatory. 21.The Respondent on the other hand maintained that she had tried to execute the decree by way of attachment of properties belonging to the Applicant which bid was unsuccessful and hence, the notice to show cause. 22.In this case, the decision of the Adjudicator committing the judgment debtor to civil Jail was made on 6/5/2025 and on 7/5/2025 he lodged a Memorandum of Appeal which is also annexed to his supporting affidavit. Effectively, the appeal filed is competent before this court. 23.The applicant also submitted that the appeal as filed is arguable and has high chances of success. That may be so. Nonetheless, it is not for this court at this stage to venture into the arguableness and or merits of the filed appeal as that would prejudice the appeal itself. However, this is not to say that this court cannot, in one sentence state whether or not the appeal as filed is frivolous. The applicant has submitted that under Section 38 of the Civil Procedure Act, execution of a money decree by way of committal to civil jail can only be affected if the circumstances thereunder are satisfied i.e that the judgment debtor is likely to leave the jurisdiction of the court or is evading to pay the decretal sum by transferring of his properties to third parties which is not the case here. It was contended that the applicant proposes to settle the decretal amount by instalments and that the Adjudicator should not have committed him to civil jail for refusal to pay the decretal sum. 24.On the other hand, the Respondent maintained that the Applicant had refused to pay the decretal sum even after making a proposal to settle decree in monthly instalments of Kshs.50,000/= and later of Kshs.100,000/=. Further, that he had been evasive and had to be dragged to court under a warrant of arrest after he failed to attend court and show cause, hence he cannot be heard to say that he can now pay the decretal sum by monthly instalment of Kshs.30,000/=. 25.Order 42 Rule 6(2) gives this court in its appellate jurisdiction discretionary power to stay of execution pending appeal on sufficient cause being established by the Applicant. The incidence of the legal burden of proof on matters which the Applicant must prove of course, lies with the Applicant. See Jeny Luesby V Standard Group Ltd (2014) e KLR. 26.In Absalom Dorb V Tarbo Transporters (2013) e KLR the court held:“the discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court; as such order does not introduce any disadvantages, but administers the justice that the case deserves this in recognition that both parties have rights, the appellant to his appeal which includes the prospects that the appeal will be rendered nugatory; and the decree holder to the decree which includes the full benefits under the decree. The court in balancing the two competing rights focuses on their reconciliation which is not a question of discrimination.” 27.Being a discretionary power, it must therefore be exercised cautiously and judiciously and not capriciously. The Applicant cannot however, in my view, hide under the provisions of the Civil Procedure Rules and the Constitution to defeat a decree of a competent court of law making him liable for a contractual debt, by laying claim to protection of his civil liberty which is being limited by way of civil jail. That right which is guaranteed by the Constitution can only be enjoyed subject to the rights of others and existing laws. 28.The Adjudicator, I strongly believe, noted the reluctance of the Applicant in settling the decretal sum despite promises and that conduct may have influenced her decision to have him committed to civil jail. She did exercise her powers granted by Order 49 of the Civil Procedure Rules. 29.Nonetheless, there is a limitation on execution by way of arrest and detention in prison of any person, under the proviso of Section 38 of the Civil Procedure Act that:“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 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 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 he 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 refuse 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 which the judgment debtor was bound in a judiciary capacity to account. 30.From the above proviso, a decree holder is not entitled to exercise the right to have the judgment debtor arrested and committed to civil jail for any specified period of time unless the conditions in the proviso are met.More importantly, the Decree holder must show that the judgment debtor has means but is evading to pay the decretal sum. 31.I have not had the benefit of perusing the Notice to show Cause proceedings before the trial court as the trial court file or the proceedings were not placed before this court. 32.It is not disputed that the judgment debtor has not been examined on his means or otherwise to satisfy the amount of the decree. I am in agreement with Majanja, J (as he then was, may his soul rest in peace) that an application for committal to civil jail may be disallowed if the judgment debtor is unable to pay the judgment debt as a result of poverty or other sufficient cause. 33.That in itself does not however, discharge the judgment debtor from liability or from settling the judgment debt, since committal to civil jail is only one of the modes of execution of decree. It is to say that a jail term once served is irreversible and, in this case, I would agree with counsel for the Applicant’s submissions that should the appeal succeed and the judgment debtor is found to have served a one-month civil jail term, that in itself renders the appeal nugatory. 34.There is indeed a proposal made to settle the decretal sum by monthly instalment of Kshs.30,000/- with effect from 6/5/2025 which proposal is unacceptable by the Respondent. 35.However, the Respondent has not shown that the Appellant has the means to enable him settle the entire outstanding decretal sums at once save for mere statements that the Applicant owns vehicles and runs businesses. The Respondent has not proved what means the judgment debtor has that he is hiding from the long arm of the law. This court, indeed does not make orders in vain. It is expected that court orders are enforced to the letter, but with the assistance of the beneficiary thereof. 36.As the Applicant has approached this court by way of an appeal, it is not the intention of this court to deny the decree holder his benefit of a lawfully obtained judgment. However, the right of appeal is a fundamental right enshrined and guaranteed by the Constitution and other law (Order 49) of the Civil Procedure Rules. That right when exercised guarantees an Appellant the right to access justice and it would be a traversity of justice if this court were to curtail that right thereby ousting him from the justice seat, especially in the absence of any evidence that the judgment debtor was examined on his means and or that the decree holder exhausted all other less restrictive or extrusive remedies under Section 38 of the Civil Procedure Act for enforcement of a monetary decree of the court. 37.In Vijay Morjana V harns Horn Junior & another, HCC 285 of 2004 the court held that the decree holder who desires to have the freedom of a judgment debtor restricted must show that he has exhausted all other means to secure payment and that the only options left is incarceration. 38.In my view, and in view of all the above considerations, I find that the appeal, if successful, would be rendered nugatory, as the Applicant would have served the entire civil jail term of one month since there is no guarantee that this appeal will be determined before the end of the jail term. 39.The last condition to be fulfilled by the applicant to warrant a stay is that he must offer security or the court may direct the deposit of such security for the due performance of the decree or order as may ultimately be binding on the Applicant. 40.In this case, the Applicant has not offered any security. However, that failure to offer security does not preclude this court from making such order for security, since the applicant cannot have it both ways; that he is unable to settle decree and that he is unable to raise security for the due performance of decree. The Applicant deposed that indicated that he is willing to abide by any condition to be imposed by this court. The Applicant contends that no prejudice will be suffered by the Respondent since if the appeal is dismissed, the applicant can still serve the civil jail. 41.This court is inclined to make orders that will meet the ends of justice and balance the interests of both parties. Since the Applicant insists that he is still willing to settle the decree, which is the reason for his committal to civil jail, and in view of his pending appeal, I would in exercise of my discretion make the following orders:a.That there be a stay or suspension of the orders of committal made on 6/5/2025 committing the Applicant to civil jail and an order for release of the Applicant from the civil jail pending hearing and determination of this appeal on condition that:i.The Applicant shall pay to the Respondent’s Advocates on record Kenya Shillings One Hundred Thousand (Kshs.100,000/=) as part of the decretal sum to secure his release.ii.Upon release, the Applicant shall deposit into court security for the due performance of decree, whether by way of land title or motor vehicle(s) log book(s) or Bank guarantee to the value of Kenya shillings Six Hundred Thousand (Kshs.600,000/=) within Fifteen (15) days from the date hereof and in default, a warrant of arrest to issue and the suspended order of committal to civil jail shall be reinstated unless the orders herein are varied by the court..b.The appeal is admitted for hearing. The same is to be prosecuted and concluded within Twelve (12) months of today. A mention date to be fixed for compliance on filing and service of the Record of Appeal and for directions on the disposal of the appeal.c)The costs of the application shall be in the appeal. 42.It is so ordered. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 14TH MAY 2026NOEL I. ADAGIJUDGEDELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 14TH MAY 2026In the presence of:Mr. Tamata .................. for ApplicantMs Nyabisi.................. for RespondentMilly................ Court Assistant