https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10795

Okello v Anyango (Commercial Miscellaneous Application E724 of 2026) [2026] KEHC 10795 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 10795 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Commercial Miscellaneous Application E724 of 2026 BW Murunga, J July 16, 2026 Between Walter Oginga Okello Applicant and Vivianne Anyango Respondent Ruling Background 1.This is a Notice of Motion/Application dated 23rd June, 2026 filed by the Applicant seeking, inter alia, orders that:-i.Spentii.the Honourable court be pleased to order immediate release of the Applicant from civil jail pending the hearing and determination of the Appeal.iii.there be a stay of execution of the order committing the Applicant to civil jail pending the hearing and determination of the appeal herein.iv.the Applicant be granted leave to appeal out of time against the judgment delivered on 5th November 2025 in Milimani CMCC No. E12046 of 2021v.the costs of this application be provided for. 2.The application is supported by the affidavit of Walter Oginga Okello sworn on 23rd June, 2026 and is premised on the grounds that the Applicant is currently incarcerated pursuant to execution of the decree arising from the judgment of the subordinate court. 3.The Applicant contends that he was unaware of the proceedings and only became aware of the judgment after his arrest and committal to civil jail. 4.The Applicant further states that unless interim orders are granted, the intended appeal will be rendered nugatory. 5.He avers that he is diabetic and requires continuous medication and medical attention. 6.He further states that he is the sole breadwinner of a family comprising four school-going children who depend on him for their upkeep and education. 7.The record before the Court confirms that the Applicant was in due course committed to civil jail in execution of the decree, and remains presently incarcerated. When the application first came before this Court on 29th June 2026, the Court, having considered the reasons advanced by the Applicant and the delay occasioned in the filing of the Respondent’s Replying Affidavit, indicated that it was minded to order the Applicant’s release upon his payment of the sum of Kshs. 1,000,000/=, pending the hearing and determination of the application. By the date of this Ruling, the Applicant had still not complied with those conditions, and accordingly remained in civil jail. 8.The Respondent opposed the application vide her Replying Affidavit dated 1st July, 2026 where she contended that it was misconceived, lacked merit, and was an abuse of the court process. 9.She argued that the Applicant was aware of the trial proceedings and judgment but failed to explain the seven-month delay in filing the intended appeal. 10.The Respondent maintained that the judgment awarding her Kshs. 1,874,700/= remained valid and that execution proceedings were properly commenced following the Applicant’s failure to satisfy the decree. 11.She asserted that the application was intended to delay execution rather than pursue a genuine appeal and urged the Court to dismiss it with costs. Applicant's Submissions 12.The Applicant submitted that committal to civil jail is not automatic upon the existence of a decree and can only be ordered after the Court is satisfied that the judgment debtor has the ability to pay but has deliberately refused or neglected to do so. Reliance was placed on Section 38 of the Civil Procedure Act and Order 22 of the Civil Procedure Rules, which require the Court to observe due process before depriving a judgment debtor of his liberty. 13.The Applicant argued that committal is a measure of last resort and should only be resorted to after other lawful modes of execution have proved unsuccessful. 14.It was further submitted that the Applicant is a civil servant earning a net monthly salary of approximately KES 15,578, is the sole breadwinner for his family of four children, and has no other source of income. Consequently, he lacks the financial ability to satisfy the decretal sum immediately. 15.The Applicant also contended that no attempt had been made by the Respondent to execute the decree through less drastic means, such as attachment of movable property, despite the Respondent acknowledging that the Applicant owned such property. 16.The Applicant further maintained that he only became aware of the judgment upon being served with the Notice to Show Cause, having not been served with a notice of entry of judgment. 17.He attributed his failure to participate in the proceedings to the non-attendance of his previous advocate and informed the Court that he had since filed an appeal together with an application for leave to appeal out of time. 18.On those grounds, the Court was urged to decline to commit him to civil jail and instead allow the decree holder to pursue other available modes of execution. Respondent's Submissions 19.The Respondent submitted that the Applicant had failed to satisfy the legal threshold for the orders sought. Relying on Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission, counsel argued that extension of time is a discretionary remedy and that the Applicant had neither offered a satisfactory explanation for the delay nor demonstrated the absence of prejudice to the Respondent. 20.The Respondent further argued that the Applicant had been fully aware of the proceedings throughout the trial. Reference was made to several affidavits of service, telephone records, and previous court proceedings, all of which allegedly demonstrated that the Applicant had been notified of the case and had deliberately chosen not to participate. It was submitted that the seven-month delay in bringing the application remained unexplained despite clear evidence of the Applicant's knowledge of the proceedings. 21.The Respondent also contended that the intended appeal lacked merit because no draft memorandum of appeal had been annexed, the defence filed in the lower court consisted merely of general denials, and the Applicant had failed to satisfy the mandatory requirements for stay under Order 42 Rule 6 of the Civil Procedure Rules, particularly the requirement to demonstrate substantial loss and furnish security for the due performance of the decree. 22.The Respondent further argued that no notice of entry of judgment was required since the matter proceeded after a defence had been filed and the claim was unliquidated. Additionally, the Applicant had already been accorded an opportunity to show cause before the committal order was issued. 23.On the Applicant's financial capacity, the Respondent maintained that the Applicant was a person of means, owning and developing properties valued in excess of KES 4 million and deriving rental income therefrom. 24.It was submitted that the Applicant had occupied and developed the disputed properties for several years without payment and therefore approached the Court without clean hands. 25.Accordingly, the Respondent urged the Court to dismiss the application. 26.Finally, in response to the Court's inquiry regarding alternative modes of execution, the Respondent explained that investigations into the Applicant's assets had revealed practical and legal impediments to attachment. The disputed properties lacked registrable titles, being held under share certificates issued by a land-buying company, while another property was not registered in the Applicant's name, making attachment likely to attract objection proceedings. 27.The Respondent therefore maintained that committal proceedings were justified in the circumstances. Issues for Determination 28.Having considered the application, the supporting affidavit, the documents relied upon and the submissions by both parties, the issues arising for determination are:a.Whether the Applicant has satisfied the threshold for extension of time to file an appeal out of time.b.Whether the Applicant has met the conditions for release from civil jail pending hearing and determination of the intended appeal.c.Whether the Applicant is entitled to orders preserving the suit property pending the hearing and determination of the intended appeal.d.What orders should issue in the circumstances. Analysis and Determination Whether leave to appeal out of time should be granted 29.The power to extend time is discretionary. The Court is required to consider factors including the length of delay, the reason for the delay, the chances of the intended appeal succeeding, and the prejudice likely to be suffered by either party. 30.In Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, the Supreme Court stated that extension of time is not a right of a party but an equitable remedy that is only available to a deserving party who satisfies the Court that the delay is justified. 31.The principles guiding the exercise of this discretion were set out in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231, where the Court of Appeal identified the length of the delay, the reason for the delay, the chances of the intended appeal succeeding, and the degree of prejudice to the respondent as the matters ordinarily to be weighed. Applied here, the seven-month delay is not insignificant, but it did not run from the delivery of the judgment in the ordinary course; on the Applicant’s account, it ran from a judgment of whose existence he says he was unaware until he was arrested and committed to civil jail in its execution. 32.The Applicant explains that he was unaware of the proceedings culminating in the judgment delivered on 5th November 2025 and only became aware after his arrest and committal to civil jail. The Court notes that the Applicant has annexed material demonstrating his circumstances and has raised the issue of lack of participation in the proceedings. 33.There is no fixed outer limit beyond which a delay becomes incapable of explanation. As observed in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, the length of a delay matters less than whether it has been satisfactorily accounted for, since it is a plausible and sufficient explanation that unlocks the Court’s discretion, and not the mere passage of time. The Applicant’s account here, that he was not served with the proceedings or the judgment, that his previous advocate failed to attend court on his behalf, and that he only learned of the decree upon his arrest is not, on its face, implausible, and goes some way towards explaining a delay that would otherwise call for a stricter answer. 34.At this stage, the Court is not required to determine the merits of the intended appeal, but only whether the intended appeal is arguable. 35.On the question of prejudice, any loss occasioned to the Respondent by the delay is capable of being addressed in an award of costs and does not, on its own, rise to a level that should defeat the application; the same cannot be said of the prejudice the Applicant would suffer were he shut out of an appeal that he has not been shown to have deliberately abandoned. Having regard to the right to be heard preserved under Article 50 of the Constitution, and the low threshold of mere arguability applicable at this stage, the balance tilts in favour of extending time. Whether release from civil jail should issue 36.Civil imprisonment is an enforcement mechanism available under the Civil Procedure Act. Section 38 of the Act empowers courts to enforce decrees via several means including, “arrest and detention in civil prison.” 37.However, the Court must ensure that the process is not used oppressively or in circumstances where it would occasion undue hardship. 38.The Court is guided by the principle that committal to civil jail is not intended to punish a judgment debtor but to enforce compliance with a lawful decree. In the case of Braeburn Limited -V- Gachoka and another (2007); it was held inter alia;“A person is not liable to be committed to civil jail for inability to pay a debt but a dishonest and fraudulent debtor is liable to be punished by way of arrest and committal.” 39.The Applicant provided evidence of his official payslips, demonstrating that he earns an approximate monthly salary of Kshs. 15,578/=. He contends that, in light of his limited income, he is not in a position to immediately satisfy the decretal sum. 40.Further, his continued incarceration impairs his ability to earn an income, thereby diminishing his capacity to make meaningful arrangements towards settlement of the decretal amount. 41.The court in Rosana Pluda -V- Phillip Kipchirchir Moi Nairobi Divorce Cause 154/2008 (unreported) observed that,“no one should be sent to jail for inability to pay a debt. It would be morally wrong to do so. And it would make no sense to send to civil jail a person who is unable to pay. That would be malicious. Civil jail is for those who refuse to part with their money to pay debts.” 42.The Applicant has further placed before the Court evidence of his medical condition, specifically that he is a diabetic patient and thus requires medication, is under dietary constrictions and requires periodical medical check-ups. Section 43 of the Civil Procedure Act provide for release on ground of illness. It provides that:“(1)At any time after a warrant for the arrest of a judgment-debtor has been issued, the court may cancel it on the ground of his serious illness.(2)Where a judgment-debtor has been arrested, the court may release him if in its opinion he is not in a fit state of health to be detained in prison.” 43.In Chemweno v Chemoiywo (Miscellaneous Civil Application E096 of 2025) [2026] KEHC 1830 (KLR), the High Court recognized that Section 43 of the Civil Procedure Act grants the Court jurisdiction to release a judgment debtor committed to civil jail where the debtor is suffering from serious illness and is not in a fit state of health to remain detained. The Court emphasized that while imprisonment for purposes of execution may be lawful, the same must be exercised in a manner that takes into account the debtor’s health and personal circumstances. 44.Although the decree holder is entitled to enforce a lawful judgment, such enforcement must be undertaken within the constitutional framework. Article 28 protects the Applicant’s inherent dignity, Article 43(1)(a) guarantees the right to the highest attainable standard of health, while Article 51(1) preserves the fundamental rights of persons deprived of liberty. Consequently, the Applicant’s medical condition is a relevant consideration in determining whether continued committal to civil jail is just and proportionate in the circumstances. 45.It is trite law that there are other modes of execution and not only by way of committal to civil jail. This court therefore finds that, although the Respondent is entitled to enforce the decree, committal to civil jail in the present circumstances would be disproportionate. 46.This principle finds further support in Solomon Muriithi Gitandu & another v Jared Maingi Mburu [2017] eKLR, where the High Court, applying the reasoning in both Braeburn Limited v Gachoka and Rosana Pluda v Phillip Kipchirchir Moi, set aside an order of committal issued without regard to whether other lawful modes of execution remained available. Civil jail, being the most drastic sanction available to a decree holder, is reserved for the debtor who has the means to pay but refuses to do so; it is a measure of last, not first, resort. 47.Unlike execution against property, execution by committal to civil jail cannot, in a real sense, be undone. Attached property retains its value and may in due course be released, sold, or restored to the judgment debtor; time spent in civil jail cannot be restored to a debtor later found to have been wrongly committed. Should the Applicant serve out a term in civil jail and his intended appeal nonetheless succeed, no process of restitution can return to him the liberty lost in the interim, and the Respondent, for her part, gains nothing towards actual satisfaction of the decree from his incarceration. It is precisely for this reason that committal must be deployed only after other lawful and less drastic modes of execution have been shown to be unavailing. 48.This approach is consistent with Kenya’s obligations under international law. Under Article 11 of the International Covenant on Civil and Political Rights, to which Kenya is a State Party, a person may not be imprisoned for no reason other than an inability to meet a contractual obligation. By operation of Article 2(6) of the Constitution, this treaty forms part of the law of Kenya, and lends further weight to the principle that civil jail is reserved for the debtor who will not pay, not the debtor who cannot. 49.Having already found, in respect of the first issue, that the Applicant has crossed the threshold for leave to appeal out of time, the Court cannot consider the question of his continued committal to civil jail as though that finding did not exist. Leave has been granted precisely because the intended appeal is arguable and not frivolous; it follows that there is a real, and not merely theoretical, prospect that the judgment founding the decree may yet be set aside or varied. To leave the Applicant in civil jail while that appeal is pending is to risk enforcing, by way of actual incarceration, a judgment the appellate court may ultimately disturb. 50.Should the intended appeal succeed, the harm occasioned by the Applicant’s continued incarceration in the interim would be irreparable in the fullest sense: no order of the appellate court, however favourable, can restore to him liberty already lost, nor compensate him in specie for time spent in civil jail under a decree later found unsustainable, much as an interlocutory injunction will issue where an applicant faces injury that no award of damages can cure, see Giella v Cassman Brown & Co Ltd [1973] EA 358. 51.The converse risk carries no such finality: should the appeal instead fail, the decree remains intact, and the Respondent is not left without remedy, execution, including recourse to civil jail should the Applicant still fail to satisfy the decree, remaining available to her. Where an order in one direction is reversible and an order in the other is not, the balance tips in favour of the course that preserves the Applicant’s liberty pending the determination of an appeal already found to be arguable. 52.Having regard to the totality of the material before the Court, including the representations of Counsel and the evidence on record, the Applicant has not been shown to be a debtor who, in the well-worn formulation, ‘can pay but won’t pay’. He is, on the contrary, a debtor who has demonstrated an inability to pay, and does not on that account qualify for continued incarceration on the conditions previously imposed. His medical condition and financial circumstances constitute sufficient cause for the Court to exercise its discretion in his favour, and the application, to the extent that it seeks his release from civil jail, is merited and is allowed. 53.In substitution of the interim order made on 29th June 2026, the Court considers it just that the Applicant be released from civil jail forthwith upon executing a personal bond in the sum of Kenya Shillings One Million (Kshs. 1,000,000 Only), so that he is not made to serve out what would, in substance, amount to imprisonment for supposed impecuniosity at the same moment that the Court has granted him leave to pursue his appeal. Whether orders preserving the suit property should issue 54.Once the Court exercises its discretion to grant leave to appeal, a further question arises: whether, absent additional orders, an injustice may yet be visited upon the Applicant that would be irreparable in nature notwithstanding his release from civil jail. The grant of leave to appeal, without more, does not of itself protect the subject matter of the intended appeal from being dissipated, alienated, or otherwise interfered with in the interim. 55.The purpose of orders preserving the subject matter of a dispute pending appeal was considered in RWW v EKW [2019] eKLR, where the High Court explained that such orders exist to keep the subject matter of a dispute intact during the pendency of an appeal, so that a party’s right of appeal remains meaningful and is not reduced, in the event of success, to an empty victory, while balancing this against the decree holder’s entitlement to the fruits of her judgment. 56.The considerations that inform an award of stay of execution under Order 42 Rule 6 of the Civil Procedure Rules, a timeous application, the risk of substantial loss, and the furnishing of security for the due performance of the decree, apply with equal force to an order preserving the suit property. 57.It might be asked why an Applicant resisting committal to civil jail on the ground of inability to pay should, in the same breath, seek to preserve property said to be worth in excess of Kshs. 4 million. The two positions are not in tension. The properties in question are not idle assets held apart from the dispute; they are the very res out of which Milimani CMCC No. E12046 of 2021 arose, and the Applicant’s continued occupation and development of them over several years forms the substratum of both the judgment below and the intended appeal. 58.Their preservation pending appeal protects the Respondent’s security for the decretal sum as much as it protects the Applicant’s right to a meaningful appeal: should the appeal fail, the properties remain available to satisfy the decree; should it succeed, the Applicant is not left appealing an empty judgment. A debtor confined to civil jail is, moreover, singularly disabled from protecting his own property interests in the interim, which makes the case for the Court’s protective intervention more, rather than less, compelling. 59.The Court is fortified in this view by the Respondent’s own submissions on execution: her investigations established that two of the properties are held under share certificates issued by a land-buying company rather than registrable titles, and that a third is not registered in the Applicant’s name at all, such that attachment would likely attract objection proceedings. 60.An order preserving the properties from alienation or interference, as distinct from an order for their attachment and sale, is not defeated by these registration difficulties and, as the reasoning in Gianfranco Manenthi & another v Africa Merchant Assurance Company Limited [2019] eKLR on security arrangements for the due performance of a decree suggests, offers a more workable means of safeguarding both parties’ interests pending the appeal. 61.Having regard to the foregoing, and mindful of the Court’s inherent jurisdiction under Section 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution to make such orders as the ends of justice require, the Court finds that the Applicant is entitled to an order preserving the properties forming the subject matter of Milimani CMCC No. E12046 of 2021 from sale, transfer, charge, or other interference, pending the hearing and determination of the intended appeal. Disposition and Orders 62.Accordingly, the Court makes the following orders:a.The Applicant is granted leave to file an appeal out of time against the judgment delivered on 5th November 2025 in Milimani CMCC No. E12046 of 2021.b.The intended appeal shall be filed within fourteen (14) days from the date hereof.c.The Applicant shall be released from civil jail forthwith upon executing a personal bond of Kshs. 1,000,000/= (Kenya Shillings One Million Only).d.The Applicant shall take steps to prosecute the intended appeal without delay.e.Costs shall abide the outcome of the appeal. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 16TH DAY OF JULY, 2026.MURUNGA, JDelivered on virtual platform in the presence of:Onganga instructed by Onganga for the ApplicantOrende instructed by Orende for the RespondentKevin Babu - Court Assistant