https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12577

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERICHO** **CIVIL SUIT NO. 20 OF 2013** **SAMWEL KIPRONO SANG t/a** **KERICHO TECHNICAL INSTITUTE.........................................PLAINTIFF/APPLICANT** **VERSUS** **FINMAX COMMUNITY BASED GROUP...................1ST DEFENDANT/RESPONDENT** **CHAIRMAN.....................................................................2ND DEFENDANT/RESPONDENT** **TREASURER...................................................................3RD DEFENDANT/RESPONDENT** **SECRETARY...................................................................4TH DEFENDANT/RESPONDENT** **RULING** # INTRODUCTION **1.** The Plaintiff/Applicant’s Notice of Motion dated 17th March 2026 is brought under sections 1A, 1B and 3A of the Civil Procedure Act, Order 22 of the Civil Procedure Rules and all other enabling provisions of the law. The Applicant seeks a stay of execution and of any committal to civil jail; review, variation or setting aside of the execution proceedings commenced against him personally; and a finding that the execution is irregular in view of the Court of Appeal’s determination that the 1st Respondent lacks capacity to sue or be sued in its own name. **2.** The prayers for certification and interim relief are spent. The substantive questions are whether the subsisting restitution and execution orders are amenable to review; whether the Respondents’ capacity invalidates execution; whether execution may properly proceed against the Applicant as proprietor of Kericho Technical Institute; and whether the summons for examination or any threatened committal to civil jail should be stayed. # BACKGROUND **3.** On 24 March 2015, as amended on 22nd April 2015, this Court entered judgment in favour of Kericho Technical Institute for Kshs.11,261,901.28 together with interest and costs. The amount due was subsequently stated to be Kshs.15,000,000/=. **4.** Pending appeal, the Respondents deposited Kshs.5,000,000/= in Court and furnished a bank guarantee for Kshs.10,000,000/= pursuant to orders made on 16th June 2015. On 6th July 2016 the money was released to the Plaintiff after the appeal was not lodged within the time then stipulated. The appeal was, however, subsequently prosecuted as Nakuru Civil Appeal No. 120 of 2017. **5.** In the case of Finmax Community Based Group & 3 others v Kericho Technical Institute [2021] KECA 962 (KLR), the Court of Appeal allowed the appeal. It held that the 1st Appellant, being an unincorporated association, could not be sued in its own name. Proceedings by or against such a body could only be maintained through named officials whose names and capacities were clearly stated; descriptions such as chairman, treasurer or secretary were not, without the names of the office holders, legal persons against whom orders could be enforced. The appellate court set aside the judgment of this Court and substituted it with an order dismissing the Plaintiff’s suit. **6.** Following reversal of the decree, the Respondents filed a Notice of Motion dated 22nd January 2025 seeking restitution under section 91 of the Civil Procedure Act. By a ruling delivered on 26th February 2025, this Court allowed that application and ordered the Plaintiff, through its proprietor Mr Samwel Kiprono Sang, to refund Kshs.15,000,000/= to the Respondents. Costs were awarded against the Plaintiff. **7.** Execution followed. The record shows that the Applicant’s health, his asserted inability to pay and the possibility of civil jail have previously arisen in the course of execution. The summons challenged in the present Motion requires Mr. Sang to attend before the Deputy Registrar for examination under Order 22 rule 35 of the Civil Procedure Rules. # THE APPLICANT’S CASE **8.** The Motion is supported by the Applicant’s affidavit sworn on 17th March, 2026. He avers that the Kshs.15,000,000/= was released pursuant to a lawful court order and received in good faith; that later stay orders could not operate retrospectively; and that Kericho Technical Institute ceased operations following its closure by the Ministry of Education. **9.** He contends that the Court of Appeal found Finmax Community Based Group incapable of suing or being sued and that execution cannot lawfully continue without disclosure of the persons behind the group. He states that his advocates requested the names, capacities, registration particulars and addresses of its officials, but no response was received. **10.** The Applicant further deposes that he lacks the means to pay and has not willfully refused to satisfy the restitution order. He relies on a medical report dated 11th June 2025 which records that he suffers from hypertension and diabetes, developed end-stage renal disease, underwent a renal transplant in December 2023 and requires continuing specialist care. He argues that committal to civil jail would endanger his health and unjustifiably curtail his liberty. # THE RESPONDENTS’ CASE **11.** The Respondents opposed the Motion through Grounds of Opposition and a replying affidavit sworn by Evalyne Ngeno-Koko on 23rd April 2026. They describe the application as incompetent, belated and calculated to postpone satisfaction of the restitution order. **12.** They contend that the Applicant has repeatedly acknowledged receipt of, and liability to refund, Kshs.15,000,000/= and that, on 11th March 2026, he proposed to pay Kshs.500,000 before October 2026. They invoke section 120 of the Evidence Act and submit that the Applicant is estopped from denying a liability which he previously admitted. **13.** The Respondents deny that the Court of Appeal declared them non-existent. Their case is that the appellate court only faulted the form in which they had been sued. They rely on section 91 of the Civil Procedure Act and the equitable principles against approbation and reprobation and unjust enrichment. **14.** Their submissions cite Serah Njeri Mwobi v John Kimani Njoroge [2013] eKLR on estoppel; Maina & 87 others v Kagiri [2014] KECA 880 (KLR) on the maxims that no person should benefit from his own wrong and that equity detests unjust enrichment; Willy Kimutai Kitilit v Michael Kibet [2018] eKLR on the constitutional place of equity; and Kenya Ports Authority v Kuston (Kenya) Ltd [2009] 2 EA 212 on restoration of a benefit retained without legal justification. They pray that the Motion be dismissed with costs. # ISSUES FOR DETERMINATION **15.** From the pleadings, evidence, submissions and the record, the following issues arise for determination: whether the threshold for review, variation or setting aside has been met; whether the Respondents’ capacity renders the restitution or execution proceedings irregular; whether execution may proceed against Mr. Sang personally; whether the examination under Order 22 rule 35 and any committal to civil jail should be stayed; and costs. # REVIEW, VARIATION OR SETTING ASIDE **16.** Although the Motion does not expressly cite section 80 of the Civil Procedure Act or Order 45 rule 1 of the Civil Procedure Rules, prayer 4 seeks review, variation or setting aside. The substance of the relief, rather than the label attached to it, determines the applicable jurisdiction. **17.** Under section 80 and Order 45 rule 1, review may be granted upon discovery of new and important matter or evidence which, despite due diligence, was not within the applicant’s knowledge; a mistake or error apparent on the face of the record; or any other sufficient reason. The application must also be made without unreasonable delay. **18.** In the National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, the Court of Appeal explained that review may correct an apparent error or omission but cannot substitute a different view for an allegedly erroneous conclusion of law; such a grievance lies on appeal. Pancras T. Swai v Kenya Breweries Ltd [2014] eKLR similarly held that review cannot be used to revisit the merits or to correct what is said to be an erroneous application of the law. More recently, the Court of Appeal reiterated in Nyong’o & others v Attorney General [2026] KECA 200 (KLR) that review is not an appeal in disguise and must be invoked without unreasonable delay. **19.** The main ground now advanced that Finmax is an unincorporated body which lacked capacity to be sued in its own name was not discovered after the restitution ruling. It was the express basis upon which the Court of Appeal set aside the original decree. It was therefore clear and available when the application for restitution was heard. **20.** The restitution order was made on 26th February 2025. The present Motion was filed more than one year later, after several execution steps and after proposals concerning payment had been made. The delay has not been satisfactorily explained. No patent error which is self-evident from the record has been identified. The Court would have to rehear the legal consequences of the Court of Appeal judgment and determine whether the restitution ruling reached the correct legal conclusion. That is the duty of an appellate court not a review. **21.** Sections 1A, 1B and 3A of the Civil Procedure Act preserve the Court’s duty to administer justice efficiently and its inherent power to prevent abuse. They do not enlarge the carefully defined jurisdiction under Order 45, confer an appellate jurisdiction over the Court’s own decision, or authorise the reopening of a final order on grounds which were previously available. **22.** The Applicant has consequently failed to establish discovery of new matter, an error apparent, sufficient reason, or absence of unreasonable delay. No basis has been laid to review, vary or set aside the restitution order of 26th February 2025. # CAPACITY, ESTOPPEL AND RESTITUTION **23.** The Applicant states the Court of Appeal’s holding only partially dealt with the issues. The appellate court did not hold that the members of Finmax ceased to exist or that the funds they provided became ownerless. It held that the association could not litigate in its own name and that the officials had to be identified by name and capacity. That defect led to the setting aside of the decree in the Plaintiff’s favour. **24.** Section 91(1) of the Civil Procedure Act provides that where a decree is varied or reversed, the court of first instance shall, on the application of the party entitled to the benefit, cause restitution to be made so as to place the parties, as nearly as possible, in the position they would have occupied but for the reversed decree. **25.** In Cyrus Komo v Hannah Nyambura Gikamu [2018] KECA 881 (KLR), the Court of Appeal explained that section 91 concerns the restoration, upon variation or reversal of a decree, of that which a party lost in consequence of the decree. Kenya Post Office Savings Bank v Wareham & 2 others [2004] eKLR likewise applied section 91 to order repayment of money paid in satisfaction of a decree which had subsequently been set aside. **26.** Restitution is therefore consequential upon reversal of the decree. The money was released to the Plaintiff because of a judgment which the Court of Appeal later set aside. Once the legal foundation for retention of that benefit fell away, Section 91 empowered the Court of first instance to restore the parties to their pre-decree position. The fact that the release order was lawful when made, and that the funds were received in good faith, does not confer a continuing right to retain them after reversal of the decree. **27.** The principles relied upon by the Respondents point in the same direction. The case of Serah Njeri Mwobi v John Kimani Njoroge [2013] eKLR recognises that a party may be precluded from resiling from a representation upon which another acted. In the case of Maina & 87 others v Kagiri [2014] KECA 880 (KLR) affirms that equity will not permit a person to benefit from his own wrong and detests unjust enrichment. Kenya Ports Authority v Kuston (Kenya) Ltd [2009] 2 EA 212 recognises the restorative obligation where a benefit has been retained without legal justification. **28.** Estoppel cannot create legal personality or confer jurisdiction where the law withholds it. It is therefore not the source of the restitution order. Its relevance here is narrower: the Applicant’s repeated acknowledgement of receipt and his proposals for payment reinforce the conclusion that the present capacity objection is a belated attempt to resist a subsisting order, rather than a newly discovered ground for review. **29.** The entitlement to restitution was adjudicated in the ruling of 26th February 2025. Unless that ruling is reversed on appeal or reviewed on a recognised ground, it remains binding and enforceable. The present Motion cannot be used as a collateral appeal against it. **30.** There must nonetheless be clarity regarding the natural persons authorised to receive funds and enforce orders on behalf of an unincorporated association. The record discloses the named deponent Evalyne Ngeno-Koko, the advocates acting for the Respondents, and an order directing payment through those advocates for onward transmission. The Applicant has not demonstrated that execution is being pursued by a stranger, for a different sum or under a different order. The unanswered request for particulars does not, without more, suspend or nullify the restitution order. # EXECUTION AGAINST THE PROPRIETOR **31.** The Applicant describes himself as the sole proprietor of the former Kericho Technical Institute. A business name under which a sole proprietor trades has no legal personality separate from its proprietor. The rights and liabilities arising under the business name are those of the proprietor. **32.** In the case of Kilonzo & Company Advocates v Mututho [2025] KEHC 4036 (KLR), the Court reiterated that, unlike a partnership firm, proceedings involving a sole proprietorship must be brought in the proprietor’s name because the business has no distinct legal personality. The same distinction appears in the case of Alice Omedi t/a Joyce Wanjiku Njuguna v Equator Bottlers Ltd [2022] eKLR. **33.** Execution directed to Samwel Kiprono Sang as the admitted proprietor of Kericho Technical Institute is therefore not execution against a stranger. In any event, the restitution order expressly required the Plaintiff, through Mr. Sang, to refund the money. The challenge to execution solely on the ground that it is directed to him personally is without merit. # EXAMINATION AND COMMITTAL TO CIVIL JAIL **34.** The Court must distinguish examination from committal. Order 22 rule 35 of the civil procedure rules permits a decree-holder to summon a judgment-debtor for oral examination concerning his debts, property and means. Its object is disclosure to facilitate lawful execution. Attendance under rule 35 is not, without more, an arrest or an order of committal. **35.** The annexed summons requires the Applicant to attend before the Deputy Registrar for examination under Order 22 rule 35. It does not commit him to civil jail. Section 38 of the Civil Procedure Act and Order 22 rule 34 contain substantive and procedural safeguards to be adhered to by the court where notice to show cause has been issued . **36.** In the case of Braeburn Ltd v Gachoka & another [2007] 2 EA 67, the Court held that inability to pay does not justify civil jail; arrest and committal are directed at the dishonest or fraudulent debtor. In Beatrice Wanjiku & another v Attorney General & another [2012] eKLR, the Court upheld the statutory regime but stressed that arrest and detention must comply with due process and the constitutional protection of liberty. Kailikia v M’Thiringi & 2 others [2024] KEHC 5860 (KLR) similarly emphasised strict compliance with the rules governing execution by arrest because that mode of execution deprives a person of liberty. **37.** The Applicant has produced evidence of alleged medical conditions. That evidence is relevant to whether ill health constitutes ‘other sufficient cause’, to the assessment of proportionality and to the practical conditions of any detention by the deputy registrar. It does not extinguish the restitution debt, relieve the Applicant of the duty of candid disclosure, or automatically exempt him from examination. The prayer to stay committal is therefore premature because no committal order arising from that summons has been demonstrated. A Notice to show cause is a lawful execution process. The proper course is not to quash the examination but to require it to proceed according to the law. **38.** The Motion has not established any ground for review, variation or setting aside of the restitution order or the execution proceedings. The capacity issue was conclusively determined by the Court of Appeal, was known when restitution was ordered and cannot now sustain a collateral challenge to the ruling of 26th February 2025. . **39.** Accordingly, the following orders issue: **1.** The Notice of Motion dated 17th March 2026 is dismissed. **2.** The Applicant shall appear before the Deputy Registrar on 24.8.26 for the Notice to show cause. **3.** The Respondents shall have the costs of the Motion. **40.** Orders accordingly. **T. A. ODERA** **JUDGE** **30.7.26** **DATED, SIGNED AND DELIVERED AT KERICHO VIA TEAMS PLATFORM ON THIS 27TH DAY OF JULY. 2026.** **Appearances:** **For the Plaintiff/Applicant: ABSENT** **For the Defendants/Respondents: ABSENT** **Court Assistant: BUSIENEI**