https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10885

Muteti v Kuluo (Civil Miscellaneous E479 of 2026) [2026] KEHC 10885 (KLR) (Civ) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 10885 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Miscellaneous E479 of 2026 AM Okutoyi, J July 16, 2026 Between Robert Nzioka Muteti Applicant and Graham Kuluo Respondent Ruling 1.The Applicant vide a Miscellaneous application dated 22nd May 2026 approached this Honourable court. That the judgment delivered on 27th November 2023 and the decree issued on 16th January 2024 in Milimani Small Claims Court Case No. SCCCOMM/E7364 of 2023 be adopted, recognized and upheld as a judgment and decree of the High Court. Subsequently leave be granted to the Applicant to execute that decree through all available legal means, including but not limited to, warrants of arrest and committal to civil jail. 2.The Applicant chronologically avers that he obtained judgment against the Respondent in Milimani SCCCOMM/E7364 of 2023 on 27th November 2023, in the sum of Kshs.103,000/=, together with costs and interest at court rates. In seeking to execute, a decree was issued on 16th January 2024, for a sum of Kshs.106,691.07/=. 3.The Respondent made no payment. On 16th April 2024, the Applicant obtained a Warrant of Attachment of Movable Property and a Warrant of Sale of Movable Property, both addressed to Betabase Auctioneers, for a total sum of Kshs. 156,596.94/= inclusive of interest and collection fees. These warrants did not result in any meaningful recovery. 4.On 20th August 2025 the Applicant filed a Notice to Show Cause seeking the Respondent's arrest and committal to civil jail for non-payment of the decretal sum, by then computed at Kshs. 171,796.17/=. On 19th February 2026, the SCC (Hon. Gladys W. Kiamah) struck out that Notice to Show Cause, holding itself bound by the decision of the three-judge High Court bench in Gathaiya v Attorney General & 178 others [2026] KEHC 290 (KLR), and finding that it lacked the legal basis to entertain or enforce notices to show cause seeking arrest and committal in execution of civil debts under the Small Claims Court Act. 5.It is on this basis, that the Applicant now seeks to have the Small Claims Court Judgment and Decree adopted as a Judgment and Decree of the High Court, and leave to execute it through all available legal means, including but not limited to, warrants of arrest and committal to civil jail. Although duly served, the Respondent neither entered appearance nor filed any response to oppose the application Legal Basis 6.The Application is anchored under Sections 1A, 1B, 3A of the Civil Procedure Act, Order 22, Order 51 Rules 1 & 2, of the Civil Procedure Rules, Article 165 (6) of the Constitution of Kenya, 2010 and all enabling provisions of the law. 7.Section 1A provides for the overriding objective of the Act is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act. A duty which shall be exercised by the Court and assisted by Parties. Section 1B provides for the duty of the court in furtherance of the overriding objective, to ensure fair outcomes, manage cases efficiently, use judicial and administrative resources wisely, resolve proceedings promptly and affordably for the parties, and employ appropriate technology. Section 3A provides for the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. The above proviso is referred to as Oxygen Principle or Double O. 8.Similarly, the Applicant anchored his application on Order 22 Civil Procedure Rules 2010 wherein it provides for mode of execution of decrees including transfer of decrees to other courts. The Application was couched as a Notice of Motion as provided under Order 51 Civil Procedure Rules 2010. Lastly the Applicant in seeking to invoke the court’s supervisory jurisdiction he cites Article 165 (6) of the Constitution which provides the High Court with supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function. 9.In citing the challenges of execution, the Applicants states that the warrants of attachment taken were not successfully enforced and also the NTSC taken out was struck out for being unconstitutional as held in Gathaiya v Attorney General & 178 others [2026] KEHC 290 (KLR). Analysis and Determination 10.Having perused the application, supporting affidavit and annexures thereto; the following are the issues for determination.a.Whether this court can adopt a judgment and decree of the Small Claims Courtb.Whether the Applicant has been left without a remedy Whether this court can adopt a judgment and decree of the Small Claims Court 11.It is appreciated that execution can be a menace. It can be a herculean task especially in an adversarial system like Kenya. In seeking to simplify court procedures, Parliament enacted the Small Claims Court Act. As established, the primary objective of the Small Claims Court is to guarantee affordable, expeditious, and accessible justice for civil and commercial disputes. The aim was to bypass complex, formal court procedures to allow ordinary citizens and small businesses to resolve disputes below Kshs 1,000,000/=. 12.The Small Claims Act under Sections 39, 40, 41, 42 and 43 exhaustively prescribes the modes of execution available to a decree holder including; -a.Attachment and sale of immovable propertyb.Attachment and sale of movable propertyc.Attachment of salary. 13.Section 37 (1) of the Small Claims Act provides for enforcement of orders to pay money, which shall be in accordance with the provisions of this Act. The provisions are supplemented by Rule 25, 26, 27, 28, 28, & 30 Small Claims Court Rules, 2019. In relation to the High Court. Section 38 of the Act provides that Appeals shall lie before the High Court and the matter shall be final. 14.That being said, a party can approach the High Court, in exercise of its right to appeal. This includes any decision that a party may be aggrieved and rendered at execution stage. 15.The Applicant herein has approached the Court in two limbs, one is supervisory jurisdiction and the other is for the court to exercise its inherent jurisdiction & overriding objective. 16.On supervisory Jurisdiction Rule 20 of the High Court (Organization and Administration) (General) Rules provides that supervisory jurisdiction under Article 165(6) of the Constitution is not limited, and in particular the Court may call for the record of any proceeding before any subordinate court and make an order or give any direction it considers appropriate to ensure the fair administration of justice. The Applicant herein has not sought for this court to call for the record for examination. The applicant simply seeks adoption of the subordinate court’s judgment decree for purposes of execution. 17.The High Court is vested with appellate jurisdiction, unlimited supervisory jurisdiction coupled with inherent jurisdiction, but the same has to be invoked properly for the court to exercise jurisdiction. The Jurisdiction of this court is only provided under section 38, Nowhere in the Act or any other statute or regulations contemplates a decree holder invoking the High Court's jurisdiction to convert a Small Claims Court decree into a High Court decree. 18.Jurisdiction is everything as the adage goes. The Supreme Court in Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR) extensively dealt with the issue of jurisdiction and the Apex court held as follows.a.”A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law. 19.Clearly for the court to exercise jurisdiction, the same should be anchored on the constitution and statute, whilst the court is appreciating that it is vested with supervisory jurisdiction the same has not been properly invoked. If the parliament had intended to provide adoption of Small Claims decrees in the High Court, the same would have been expressly provided for just as under Order 22, rule 4, where if a Court desires that its own decree shall be executed by another court, it shall transmit the decree to the other court. 20.Can a court assume jurisdiction out of draftsmanship, innovation and/or inefficiencies of remedies? The Supreme court in Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR emphasized that the courts ought to strictly operate within jurisdictional limits and that a court cannot arrogate or expand its jurisdiction. As such the supervisory jurisdiction ought not to be exercised. 21.In buttressing the Jurisdiction of this Court, the Applicant further invokes the inherent jurisdiction of the court as provided under sections 1A, 1B, 3A of the Civil Procedure Act. The overriding objective facilitate just, expeditious, proportionate and affordable resolution of disputes, including at the execution stage. The Objective furnishes the High Court with jurisdiction, in genuinely residual cases, to make such orders as are necessary to prevent a decree holder from being left without any practical means of enforcing a valid and subsisting decree, where the specialist forum that issued the decree has, through no fault of the decree holder, been left without a full suite of lawful execution tools. 22.That said, the inherent jurisdiction is exercised where the law does not provide an express provision and/or procedure under the law and to avoid an injustice. The limbs are conjunct, the objective is meant to supplement, not to supplant existing provisions. The Courts are cautious about using inherent jurisdiction where Parliament has already legislated and provided a procedure on the same. 23.The Court in the case of R -vs- NGCDF Board and another (2017) eKLR, discussed the overriding objecting principle in the following words,“The double O’s, in the phrase overriding objectives are what coined what is today famously known as the term oxygen principle. In Hanker Trading Company Limited –vs- ELF Oil Kenya Limited, perhaps the first case to be grounded on the new provisions, the Appellate Jurisdiction Act (Sections 3A and 3B), it was held that Section 1A of the Civil Procedure Act came in to provide facilitation of just; expeditious, and proportionate resolution of civil disputes in Kenya, as the overriding objective of the Act. 24.Considering the above provisions which introduced the oxygen principle, the court in Kamani –vs- KACC drew comparisons to the wolf reforms which introduced similar provisions in England in 1998 by way of the Civil Procedure Rules and further considered the English case of Bigizi –vs- Bank Leisure in which Lord Wolf himself talked about the concept of overriding principles objective as follows;“Under the (Civil Procedure Rules) the position is fundamentally different. As rule 1.1 makes clear the (rules) is a new procedural code with the overriding objective of enabling the court to deal with cases justly. The problem with the position prior to introduction of the (rules) was that often the court had to take draconian steps such as striking out the proceedings…” 25.From the foregoing, overriding objective was introduced as an amendment in the Civil Procedure Act to remedy procedural aspects only, where the procedure is not provided for or a scenario or where the Legislature could not contemplate. The Court will sparingly exercise the jurisdiction when there is no provision, no other remedy and if not exercised an injustice will occur. 26.The Court of Appeal delivered itself firmly on the application of oxygen principle in the case of Hunker Trading Company Ltd vs Elf Oil Kenya Limited wherein it stated:-a.“It seems to us that in the exercise of our powers under the “Oxygen Principle”, what we need to guard against is any arbitrariness and uncertainties. For that reason, we must insist on full compliance with past rules and precedents which are Oxygen compliant so as to maintain consistency and certainty. We think the exercise of the power has to be guided by a sound judicial foundation in terms of the reasons for the exercise of power. If improperly invoked, the oxygen principle could easily become the unruly horse....” 27.This court mindful of the fact that, the Constitution requires the courts under Article 159 to render justice without undue regard to procedural technicalities. Further the court is aware of the challenges of execution experienced by litigants in the small claims court, challenges that culminated the institution and the determination in the Gathaiya Case. However, where a party fails to properly move the court, the court has no discretion by way of the oxygen principle to breathe life to a proceeding that is not anchored in law. The Court will only tamper law with fairness and justice. 28.The supreme court Obado v Oyugi & 2 others [2014] KESC 25 (KLR) in while citing Nicholas Kiptoo Arap Korir Salat v IEBC & 6 others [2013] eKLR agreed with the Dictum of Kiage JA as follows:-a.“... I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succor and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is a clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned...” 29.It must be appreciated that the Application is procedurally a novel one. But the Application cannot be argued as a substitution of an established procedure; moreso to warrant the Court to exercise its inherent and supervisory jurisdiction under Article 165(6) of the Constitution, and its overriding objective under sections 1A, 1B and 3A of the Civil Procedure Act. 30.The Applicant has not pointed to any provision of law authorising this Court to adopt or convert a decree of the Small Claims Court into a decree of the High Court merely because one mode of execution is unavailable. 31.A decree issued by a court of competent jurisdiction remains valid and enforceable unless set aside on appeal or review. Difficulty in execution does not extinguish the decree nor does it create jurisdiction where none exists. 32.Accordingly, I find no legal basis upon which this Court may adopt the decree of the Small Claims Court as its own judgment. Whether the Applicant has been left without a remedy 33.The Applicant argues that unless the Court intervenes, the fruits of the judgment shall remain beyond reach. This concern is not without merit. The law has long recognized that a successful litigant ought not, without lawful cause, be deprived of the fruits of his or her judgment. Courts have consistently guarded that principle because judgments are not rendered in vain. 34.Nevertheless, the equally fundamental constitutional principle is that courts exercise only such jurisdiction as has been donated by law. The Court is therefore confronted with two competing imperatives: the obligation to uphold the efficacy of judicial decrees; and the equally compelling obligation to remain within constitutional and statutory limits. The latter principle must prevail. 35.The Applicant cannot argue that he intends to only execute the decree through warrants of arrest and that the decision in Gathaiya rendered all the execution mechanisms inefficient or spent. Indeed, in the Gathaiya case, the judgment left Sections 39 & 40 of the Small Claims Court own modes of execution wholly intact. The modes of execution namely, attachment and sale of immovable and movable property and attachment of salary under section 39(a) and (b) of the Act, which can be exercised by the Applicant severally. 36.If indeed the decision in Gathaiya has exposed a gap in the enforcement of decrees issued by the Small Claims Court where attachment proves unsuccessful, the remedy lies in legislative intervention rather than judicial innovation. 37.It is not open to this Court, under the guise of interpretation, supervisory jurisdiction or inherent powers, to create substantive execution procedures which Parliament has not enacted. This Court therefore declines the invitation to assume jurisdiction where none exists. 38.This court finds that it lacks jurisdiction to adopt the decree issued by the Small Claims Court as its own judgment and decree or to grant leave of execution through committal to civil jail in the absence of express statutory authority. Disposition 39.In the result, I find the application herein to be devoid of merit. 40.Accordingly, the Notice of Motion dated 22nd May 2026 is hereby dismissed with no orders as to costs DATED, SIGNED AND DELIVERED VIRTUALLY THIS 16TH DAY OF JULY 2026.ANNE M. OKUTOYIJUDGEIn the Presence of:Ms. Minaywa for the Applicant.N/A for the Respondent.Ruth Mokeira: Court Assistant.