Metioni v Mwashinga (Environment and Land Appeal E003 of 2026) [2026] KEELC 5283 (KLR) (31 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT VOI** **ENVIRONMENT AND LAND CASE** **APPEAL NUMBER: E003 OF 2026** **REUBEN MZEE METIONI ………………………………………………...APPELLANT** **VERSUS** **GASPERY NYANGE MWASHINGA………………………………………..RESPONDENT** **RULING** 1. **Brief facts of the Application:** 1-The Applicant /Respondent filed Notice to Show Cause dated/issued on 22.5.2026, seeking an order that the Appellant/Judgment Debtor be committed to civil jail for non payment of Kshs. 15,700/-. 2-The Notice to Show Cause was brought under order 22 of the civil procedure rules 2010 for payment of kshs 15,700/= being thrown away costs granted to the Respondent upon withdrawal of the appeal with costs on 16.3.2026 3-The Appellant opposed the Notice to Show Cause application vide Grounds of Opposition dated 7.7.2026, averring that the Respondent had failed to explore other execution methods before seeking to commit the debtor to civil jail is an exceptional remedy. The Appellant averred that he could not afford to pay the demanded amount, although he was willing to settle the debt by way of instalments. The Appellant further stated that he was not consulted before the consent was recorded. Accordingly, the Appellant prayed that the Notice to Show Cause be dismissed. 1. **Directions of the Court** 4-The parties were directed to file and exchange written submissions vide the order dated 16th July, 2026. 1. **Analysis and Determination** 5.Having considered the Grounds of Opposition and Notice to Show Cause dated 22.5.2026, the following issues are for consideration: - a) Whether the Applicant should be committed to civil jail for non-payment of Kshs. 15,700/- . b) Whether it is unconstitutional to commit a judgment debtor to civil jail. c) Whether a reasonable proposal has been offered by the Appellant. 6.Committal to Civil Jail of a judgment debtor is a recognized mode of execution of a decree against a judgment debtor pursuant to Order 22 Rule 31 and 34 of the Civil Procedure Rules, 2010, which provide for discretionary power to permit judgment debtor to show cause against detention in prison as follows: **1-Notwithstanding anything in these Rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the court may, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the court on a day to be specified in the notice and show cause why he should not be committed to prison. 2-Where appearance is not made in obedience to the notice, the court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment debtor**.” Rule 34 of the civil procedure rules 2010 provide as follows: **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**. 7.Section 38(d) of the Civil Procedure Act, Cap. 2010 provides for powers of court to enforce execution as follows: Subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree-holder, order execution of the decree— 1. by delivery of any property specifically decreed; 2. by attachment and sale, or by sale without attachment, of any property; 3. by attachment of debts; 4. by arrest and detention in prison of any person; 5. by appointing a receiver; or 6. in such other manner as the nature of the relief granted may require: "Provided that where the decree is for the 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— provided that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree— (a) 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, 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 b. that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.” 8.It is trite that Section 38(d) of the Civil Procedure Act, Cap. 21 provides for enforcement of the execution of a decree in favour of a decree-holder by the arrest and detention in prison of any person. 9.Prior to committing a judgment debtor to civil jail, the decree-holder must satisfy the court that, despite the financial means and ability of the judgment debtor to pay the decretal sum, the debtor has deliberately neglected or refused to pay and has removed, disposed of, or concealed the whole or any part of his property from the jurisdiction of the court placing reliance on the case **of Ahmed Omar Swadan v Frederick Ndambuki Mutisya (2022) eklr where the court stated:** “8. The application before me is expressed to be brought under **Sections 3A and 6 3(e) of the Civil Procedure Act and under Order 22 Rule 22 of the Civil Procedure Rules**. There was however no substantive application for stay of execution before me at this stage to warrant the invocation of the said **Order 22 Rule 22 of the Rules.** Having considered the substance of the application, I think **Order 21 Rule 12 (2) of the Civil Procedure Rules** should have been the appropriate provision. The said order provides thus: “**After passing of any such decree, the Court may on the application of the Judgment-debtor and with the consent of the decree-holder or without the consent of the decree holder for sufficient cause shown, order that the payment of the amount decreed be postponed or be made by instalments on such terms as to the payment of interest, the attachment of the property of the Judgment debtor or the taking of security from him, or otherwise as it thinks fit**.” 10.The provisions of Order 21 Rule 12(2) grant the Court a wide discretion as to whether payment of the amount decreed will be postponed or settled by way of instalments. This discretion must however like any other discretion granted to the Court be exercised in a Judicious manner and not arbitrarily or on a mere whimsical basis. "10. Considering the exercise of such discretion in **Keshavji Jethabai & Bros Limited -vs- Saleh Abdulla (1959) EA 260**, the Court of Appeal observed that:(a) a. Whilst the creditors rights must be considered, each case must be considered on its own merits and discretion exercised accordingly (b) The mere inability of a debtor to pay in full at once is not a sufficient reason for the exercise of the discretion. (c) The debtor should be required to show his bona fides by arranging prompt payment of a fair proportion; and (d) Hardship of the debtor might be a factor, but it is a question in each case whether some indulgence can fairly be given to the debtor without prejudicing the creditor. 11. Addressing itself to a similar scenario in **Rajabah Alidina -vs- Remtulla Alidina & Another (1961) EA 565,** the Court set out the conditions to be considered as follows: (a) The circumstances under which the debt was obtained (b) The conduct of the debtor; (c) His financial position; and (d) His bona fides in offering to pay a fair proposition of the debt at once. 12. Guided by the above legal principles and conditions, it was clear to me that a judgment creditor is entitled to payment of the decretal amount which amount he should receive promptly to, as it were, reap the fruits of his judgment. It was also clear to me that while the Judgment debtor might genuinely be in a difficult position in paying the decretal sum at once, he was required in such an instance to show his bona fides by demonstrating that he was serious in his commitment to pay but for the handicap that he was presently facing. 13. In the matter before me, all that the Defendant/Judgment debtor says is that the amount he is supposed to pay is enormous given that he is a retiree. He avers that he has children in school and medical bills to pay and that, given the global Covid-19 pandemic, he has been rendered immobile and cannot engage in any meaningful economic activities. 14. In my view, for the Court to allow payment by instalments, the Judgment debtor ought to lay bare his financial position for scrutiny by the court. While the Judgment debtor herein states that he is a retiree from the private sector living on a pension, he does not state the amount of pension that he is entitled to. While he states that he has children in school, a perusal of the documents annexed would suggest that there are no such children in school. For instance, one of the children is said to have been admitted to the Kenya Medical Training College on 17th March, 2015 for a duration which the admission letter puts at 2 years. That time had certainly expired as on 22nd July, 2020 when the debtor made this application.” 11.The Appellant averred he never consented to withdrawal of the appeal with costs on the 16.3.2026 being the subject of the Notice to Show Cause herein, despite having been served which consent remains unchallenged and bound by it. The averment by the Appellant amounts to a deliberate refusal to pay the debt due and payable to the Judgement holder. 12.It is not doubted that the Appellant/Judgment Debtor was served with the Notice to Show Cause application hence accorded an opportunity to explain why he cannot not be committed to civil jail. The filing of the Grounds of Opposition on record by the Appellant is a pointer that Appellant’s right to a fair hearing has been adhered to pursuant to Article 50 of the Constitution of Kenya, 2010. 13.Similarly, committing a judgment debtor to civil jail is a remedy of last resort upon considering other factors on a case-to-case basis as restated in the case of Charles lutta kasamani vs Concord Insurance Co ltd vs Deputy Registrar Milimani High Court Commercial &admiralty Division (2018) eklr. The decree for execution derives its origin on the consent order dated 16.3.2026 that withdrew the appeal with costs of kshs 15000/= hence lawful for execution against the judgment debtor/Appellant. 14.On account of Order 21 Rule 12(2) of the Civil Procedure Rules, 2010 provides a decree may be satisfied by way of monthly instalments. Apart from the Appellant's averment of an intention to offset the sum of Kshs. 15,700/= by way of monthly instalments, there is no proposed timeline or indication of how much would be payable to the decree-holder monthly until payment in full. 15.The Court notes that the Judgment debtor is non-committed to offset the decretal sum in favour of the Respondent. The Respondent is entitled to enforcement of the costs as awarded on the 16.3.2026 despite the Appellant's allegation that he lacks the financial ability to pay the sum of Kshs. 15,700/=, has not been by the Respondent. To date, the Appellant has not commenced payment of the decretal sum in favour of Respondent thereby casting doubt on his ability to liquidate the decretal amount if allowed. pursuant to Order 21 Rule 12(2) of the Civil Procedure Rules, 2010 the court is clothed with discretion to allow payment of decretal sum by instalments on reasonable terms before committing a judgment debtor to civil jail. In the instant case, the proposed monthly payment plan by the Appellant has not been placed before the court for consideration vis-à-vis the decree-holder's right to enjoy the fruits of his judgment. 16.The Appellant averred that it is a drastic measure to commit him to civil jail for non payment of Kshs. 15,700/= to the decree-holder. Each case, however, must be determined on its own circumstances more so where good faith to offset the decretal sum in favour of the Judgement Creditor is wanting, the court will not hesitate to commit the judgment debtor to civil jail. In the interest of justice and considering the Appellant's averments, I hereby order that the appellant be accorded an opportunity to defray the decretal sum instead of committing him to civil jail at first instance. The Appellant is hereby ordered to pay kshs 15,700/= in favour of the Respondent within 30 days from the date of the ruling, failing which execution shall issue. 17.Costs follow events pursuant to Section 27 of the Civil Procedure Act, Cap. 21, though the award of costs remains at the discretion of the court. The Appellant has been aware of the pending debt due and payable to the Respondent since 16.3.2026 but adamant to pay hence condemned to pay the costs of the notice to show cause application dated 22.5,2026. **Final Disposal** a). The Appellant shall pay the decretal sum to the Respondent within 30 days from the date of the ruling, failing which execution shall issue. b). The costs of the Application awarded to the Respondent. **DELIVERED, DATED AND SIGNED AT VOI IN OPEN COURT THIS 31.7.2026** **BY J.A. ORWA** **JUDGE.** **IN PRESENCE OF:** **Mr. Angima for the Appellant/Judgment debtor.** **Mr. Mwazighe for the Respondent/Judgement creditor.** **Mr. Letisia -Court Assistant**