https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10513

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MARSABIT** **HFC MISC E001 OF 2025** **QURESHO HASSAN MAMO……………………………..…………APPLICANT** **VERSUS** **ADAN HASSAN MAMO………………………….………………RESPONDENT** **RULING** 1. **Introduction** 2. The Applicant before court for determination is the Notice of Motion dated 28th May 2026, brought ***under Articles 28, 29, 48, 50 and 159 of the Constitution of Kenya, Sections 1A, 1B and 3A of the Civil Procedure Act, and Order 22 Rules 31, 32 and 34 of the Civil Procedure Rules***. The Applicant seeks for prayers that: 3. ***- (c) Spent*** 4. ***That this Honourable Court be pleased to review, vary and/or set aside the orders issued on 6th May 2026 committing the Applicant to civil jail.*** 5. ***That this Honourable Court be pleased to allow the Applicant to liquidate the decretal balance of Kshs. 168,000/= by reasonable monthly installments as the Court may direct***. 6. The application is supported by the affidavit of the applicant, ***Quresho Hassan Mamo*** sworn on 28th May 2026, wherein she avers that on 06.05.2026 pursuant to NTSC proceedings, before the subordinate court, she be committed to civil jail for 30 days for failure to pay the respondent a decretal amount of Kshs.168,000/=. As a result, she had been detained at Marsabit G.K. Prison and deprived of her civil liberty over a Civil debt, notwithstanding the fact, that she had demonstrated her inability to settle the same through one bullet payment, rather than refusal to pay. 7. She reiterated that prior, to her committal, she had informed the trial court, that she did not have formal employment and/or a stable source of income capable of enabling her to immediately clear the decretal amount in one installment, but the said court had ignored her sentiments and proceeded to commit her to civil jail, which act, violated her rights to dignity, liberty and fair hearing. To that extent her detention was thus oppressive, unconstitutional, and prejudicial to her as she is the sole breadwinner of her family. She thus urged the court to allow her to liquidate the said decretal sum through an initial payment of Kshs.30,000/= and thereafter liquidate the balance through monthly installments as this Honourbale court may determine. B. **The Response** 1. The Respondent, opposes this application through his replying affidavit sworn on 28th May 2026, where he averred that the Applicant has moved court in bad faith as she had deliberately and persistently refused to settle the decretal sum despite being repeatedly indulged, and expressly communicated her resolve not to budge through several SMS’s, she sent him. 2. Further, during the notice to show cause proceedings, the applicant was given an opportunity to explain herself but failed to demonstrate any genuine inability to settle the decretal sum. Consequently, the court upon being satisfied that the decretal sum remained unsatisfied and no proper cause had been shown as to why the decretal sum remained unpaid, proceeded to issue a warrant of arrest, pursuant to which the applicant was arrested and presented to court on 18.12.2025. 3. The applicant was then granted a further opportunity to plead her case and the court upon considering the parties respective submissions delivered its ruling on 19.12.2025, which balanced the interest of both parties by affording the applicant an opportunity to liquidate the decretal amount by instalments and directed her to pay half of the decretal amount failure of which she would remain committed to civil jail. It was to be noted that the applicant partially complied with the court order by making partial payment but despite being severally indulged by the court, she failed to honour her commitment to settle the outstanding balance and thus on 06.05.2026, the court did re issue the warrants of arrest, which she now sought to lift. 4. From the foregoing chronology, it was clear that the applicant had been given numerous opportunities to satisfy the decree, but had failed to do so and therefore the said warrants of arrest sought to be lifted were not issued arbitrarily or prematurely, but rather as the last resort after all possible avenues of compliance had been exhausted. Therefore, to lift the warrants would only serve to reward the applicants deliberate non compliance with court orders, undermine the authority and dignity of the court and continue to prejudice him as a decree holder, by being denied the fruits of his judgment for extended period of time, yet the applicant had not demonstrated exceptional circumstances, and/or sufficient cause to warrant lifting of the said warrants of arrest. 5. Finally, it was to be noted that the applicant had not appealed and/or sought to review the primary court’s ruling dated 19.12.2025, which gave her an opportunity to settle the decretal sum by instalments and she was therefore not deserving of the of this court’s discretion, having previously been indulged and defaulted on her own undertaking. In the circumstance, there was every reason to believe that the current proposal was merely tactical and is intended to delay satisfaction of the decree rather than a genuine commitment to settle the outstanding amount. 6. The respondent thus urged the court to dismiss the application under consideration with costs. 7. **ANALYSIS AND DETERMINATION** 8. I have carefully considered the application, the affidavits filed in support and in opposition thereto, and the submissions of counsels. The issues arising for determination are: 9. Whether the committal orders of 6th May 2026 should be reviewed or varied; 10. Whether the Applicant should be allowed to liquidate the decretal sum by installments. 11. On the first issue, **Section 80 of the Civil Procedure Act and *Order 45 Rule 1 of the Civil Procedure Rules*** *provides as follows: -* ***Section 80. Review*** ***“Any person who considers himself aggrieved—*** 1. ***by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or*** 2. ***by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made******the order, and the court may make such order thereon as it thinks fit.”*** ***[Order 45, rule 1.] Application for review of decree or order.*** ***“1. (1) Any person considering himself aggrieved*—** 1. ***by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or*** 2. ***by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.*** ***(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review”*** 1. From the above provisions, it is clear that **Section 80 of the Civil Procedure Act** grants the court the power to make orders for review, while **Order 45 of the Civil procedure Rules** sets out the jurisdiction and scope of review by hinging review to discovery of new and important matters or evidence, mistake or error on the face of the record and any other sufficient reason. 2. The Court of Appeal had the following to say in an application for review in the case of **National Bank of Kenya Ltd vs Ndungu Njau**. ***“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for* review.”** 1. In relation to the orders dated 06.05.2026 before this court can exercise its discretion to review the same, the applicant must demonstrate the discovery of new and important matters or evidence, mistake or error on the face of the record and any other sufficient reason, but unfortunately, the applicant has failed to do so and the court cannot thus review the said orders in a vacuum. 2. With regard to whether she should be granted an opportunity to settle the outstanding decretal sum by installments, it is clear that the trial Court did indulgence the Applicant by granting her leave and opportunity to settle the decretal sum through installments on several occasions but, she repeatedly defaulted, which ultimately led to the issuance of committal orders on 06.05.2026. 3. Her plea, that she has demonstrated willingness and commitment to settle the said amount, but has been unable to do so, too is not a new issue not previously determined by the trial court. To the contrary, the respondent, has demonstrated how for prolonged period of time, the applicant has been consistently indulged by the trial court, but she has taken advantage of the situation and failed to honour her obligation. 4. **DISPOSITION** 5. The upshot is that the application dated 28th May 2026 lacks merit and is dismissed with costs, which is assessed at **Kshs.25,000/=** all inclusive. 6. Stay of execution is granted for 30 days. 7. It is so ordered. **Dated, signed,** and **delivered** in open court at **Marsabit** this **9th** day of **JULY, 2026.** **FRANCIS RAYOLA OLEL** **JUDGE** Delivered through Email and on CTS , portal this **9th** day of **JULY ,2026.** **In the presence of**: - ………………………………………………………..Appellant ………………………………………………………. Respondent ……………………………………………………….Court Assistant