Onsongo t/a Onsongo & Co. Advocates v Aidah & another (Miscellaneous Appeal E051 of 2023) [2026] KEHC 8384 (KLR) (11 June 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **MISCELLANEOUS APPLICATION NO. E051 OF 2023** **RICHARD B.O. ONSONGO T/A** **ONSONGO & CO. ADVOCATES………………………….…..APPLICANT** **VERSUS** **APOLO OGUTU AIDAH………………………………..1ST RESPONDENT** **BOAZ OSIR AIDAH……………………………………..2ND RESPONDENT** **RULING** 1. The record bears it that the Respondents filed an application by notice on motion dated 26th November, 2024 seeking to liquidate the decretal amount by way of monthly instalments, which they subsequently withdrew on 3rd March, 2025 to pursue negotiations. Costs were awarded to the Applicant. 2. Notwithstanding the withdrawal of the motion dated 26th November, 2024, the Respondents filed another application dated 4th March, 2025, which sought similar orders as the one that they withdrew – payment of the decretal sum by instalments. 3. When the application dated 4th March, 2025 came up for hearing on 3rd April, 2025, parties recorded a consent in the following terms: ***“By consent the Clients/Respondents do pay Ksh.500,000/- to the Advocate/Applicant on or before 15th April, 2025 and the balance of the decretal sum to be paid in equal instalments of Ksh.100,000/- from 15th May, 2025 and thereafter every 15th day of each succeeding month until payment in full and in default warrants of arrest to issue and the Clients/Respondents to be committed to civil jail for the balance then outstanding.”*** 1. The above consent remains unchallenged. 2. The Respondents have today admitted that no payment has been made towards satisfaction of the consent arrangement. It is such non-payment that prompted the Applicant to take out a notice to show cause why the Respondents should not be committed to civil jail, that has proceeded today. 3. **Mr. Onsongo,** learned Counsel for the Applicant, submits that the notice to show cause is founded on a consent entered into by the parties on 3rd April 2025, through which the decretal amount was acknowledged and is therefore not in dispute. 4. Counsel argues that the consent contained a default clause providing for the issuance of warrants of arrest in the event of non-compliance. He contends that the Judgment Debtors have failed to pay even a single instalment as agreed and that the consent order, being contractual in nature, is binding upon the parties. 5. Consequently, Counsel urges the Court to enforce the terms of the consent and issue warrants of arrest against the Judgment Debtors. 6. On her part, **Ms. Wagumba,** learned Counsel for the Respondents, contends that although the parties entered into the consent and the Judgment Debtors are in default, the failure to comply was not deliberate. Counsel submits that the Judgment Debtor (not specifying which one of the two) was laid off from employment and has since remained unemployed, rendering him unable to meet the agreed instalment payments. 7. Counsel argues that the law does not favour the imprisonment of a person who is genuinely unable to pay a debt. She further informs the Court that the Judgment Debtor (again not specific as to which one) intends to dispose of a parcel of land to raise funds towards settlement of the decretal sum and has already reached out to the Applicant in that regard. 8. Accordingly, she urges the Court to take into account the Judgment Debtors’ financial circumstances and proposed efforts to satisfy the decree. 9. In brief rejoinder, **Mr. Onsongo** submits that the Respondents have failed to comply with the terms of the consent despite having previously sought indulgence from the Court through an application dated 4th March, 2026, which culminated in the recording of the consent. 10. Counsel maintains that the Respondents’ default is not due to inability to pay but rather a refusal to honour their obligations. He contends that the 1st Respondent possesses several properties and is therefore capable of satisfying the decretal sum, and urges the Court to find that the continued non-compliance is unjustified. 11. Based on the facts and submissions, the following two issues succinctly arise for determination: 1. Whether the Respondents are in breach of the consent order recorded on 3rd April, 2025. * 1. Whether, in the circumstances of this case, the Court should issue warrants of arrest and commit the Respondents to civil jail for failure to comply with the consent order. 1. These issues neatly separate the questions of (i) non-compliance with the consent and (ii) the appropriate execution and enforcement consequences flowing from that non-compliance. 2. The first issue for determination is whether the Respondents are in breach of the consent order recorded on 3rd April, 2025. 3. The Court has carefully considered the record, the submissions of Counsel, and the applicable law. It is not in dispute that on 3rd April, 2025, the parties freely recorded a consent order providing for structured payment of the decretal sum by instalments, with a clear default clause stipulating that in the event of non-compliance, warrants of arrest would issue and the Respondents would be committed to civil jail for the outstanding balance. 4. It is equally not in dispute that the Respondents have not made any payment whatsoever in compliance with the said consent. The explanation offered by the Respondents is inability to pay due to unemployment and financial constraints. However, the consent order remains unchallenged, unaltered and in full force. It has not been set aside, reviewed, varied or appealed against. 5. The legal effect of a consent judgment or order is well settled. In ***Flora Wasike v Destimo Wamboko [1988] eKLR,*** the Court of Appeal held that a consent has contractual effect and can only be set aside on grounds that would justify setting aside a contract, such as fraud, mistake, misrepresentation or any other sufficient cause. In the present case, no such grounds have been demonstrated. Indeed, no application has been filed to review, vary or set aside the consent and it therefore binds the parties in its terms. 6. In the circumstances, the Court finds and holds that the Respondents are in clear breach of the consent order recorded on 3rd April, 2025. 7. The second issue for determination is whether the Court should issue warrants of arrest and commit the Respondents to civil jail. 8. Having found that the Respondents are in breach of a valid and binding consent order, the next issue is the appropriate remedy. 9. The consent itself expressly provided for consequences in the event of default, namely issuance of warrants of arrest and committal to civil jail for the outstanding balance. The Court notes that the Respondents voluntarily entered into the consent and bound themselves to its terms. 10. While the Respondents contend that they are unable to pay due to unemployment, the Court observes that apart from the fact that the consent remains unchallenged, no sufficient evidence has been placed before it to demonstrate inability to pay. On the contrary, the Applicant maintains that the 1st Respondent has assets capable of satisfying the decretal sum. In any event, mere allegations of financial difficulty, without credible proof, are insufficient to defeat a lawful decree or a consent order. 11. Accordingly, the Court is satisfied that the Applicant is entitled to enforce the consent as drawn. 12. In the result, the Court finds both issues for determination in favour of the Applicant and against the Respondents. The notice to show cause succeeds. 13. The Court therefore orders that warrants of arrest do issue against the Respondents for them to be presented before the Court upon their apprehension. Substantive committal proceedings shall then follow. 14. The matter will be mentioned on 25th June, 2026. 15. Orders accordingly. DELIVERED (virtually), DATED & SIGNED this 11th day of June, 2026. **JOE M. OMIDO** **JUDGE** FOR APPLICANT: **Mr. Onsongo.** FOR RESPONDENTS: **Ms. Wagumba.** COURT ASSISTANT: **Mr. Juma** & **Mr. Ngoge.**