https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4247

 REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT OF KENYA AT MOMBASA COUNTY COURT NAME: MOMBASA ENVIRONMENT AND LAND COURT CASE NUMBER: ELCLA/E006/2025 WILSON GACANJA VS NJUGUNA KAHARI & KIAI & CO.ADVOCATES JUDGMENT Wilson Gacanja (hereinafter referred to as the appellant) has appealed to this court from the ruling and orders of the Honourable C. Yalwala [SPM] delivered at the ELC Mombasa on 29th January 2025 in ELC MISC. NO. E045 OF 2023. (Hereinafter referred to as the ruling appealed from) The genesis of this appeal is a Bill of Costs arising from legal services rendered to the appellant by Njuguna Kahari and Kiai and Company advocates (hereinafter referred to as the respondent) in ELC Civil Appeal No. E084 of 2022 at Mombasa. The parties in the Civil Appeal were Bhagdra Ltd and 3 others –vs- Kenya Anti-Corruption Commission, Samuel Gathiga Mwangi and the appellant. The bill was assessed at Kshs.2,279,740 as per the certificate of costs dated 15th August 2010. The respondent filed an Advocate/Client bill of costs arising from legal services rendered to the appellant in Civil Appeal No. E084 of 2022 (Mombasa) - Bhangra Limited & 3 others vs Kenya Anti-Corruption Commission, Samuel Gathiga Mwangi and Wilson Gachanja which was assessed at Kshs. 2,279,740.00 as per the Certificate of taxation herein dated 15th August, 2010 The respondents then filed an application against the appellant for the said amount in which judgment was entered in their favour as against the appellant on 18th September, 2024. They then applied for execution against the appellant, by the Notice to Show Cause (NTSC) dated 30th October, 2024 for the appellant to show cause why he should not be arrested and committed to civil jail for failing to pay the said decretal sum herein. The NTSC came up for hearing before the learned magistrate on 20th November 2024 when learned counsel for appellant attended court virtually but the appellant did not attend court. An affidavit filed on court record in that respect showed that the NTSC had been duly served upon the appellant. Due to the contestation by learned counsels in regard to whether or not the said decretal sum herein was catered for in a judgment delivered in Nairobi ELC Case No. E003 of 2002 and whether the appellant had been personally served with the NTSC, the learned Magistrate adjourned the NTSC to the 11th December, 2024, with leave to learned counsel to file affidavits to ventilate on those contestations, When the matter came up before the learned magistrate on 11th December, 2024, the appellant did not attend court and his counsel, Ms. Kagoya, indicated to court that they had filed an affidavit, though not served, while learned counsel for the respondent indicated to court that they had filed a further affidavit. The learned Magistrate directed that as learned counsel for the appellant had not filed an affidavit within the stipulated period, that the matter would proceed for the hearing of the Notice to Show Cause (NTSC ) as scheduled as if no affidavit had been filed by the appellant. The learned Magistrate rendered his ruling on that application for adjournment and disallowed the same and directed that the Notice to Show Cause (NTSC) proceeds for the hearing as scheduled. Learned counsel for the respondent then prayed that the Notice to Show Cause (NTSC) be allowed and an order of committal to civil jail do issue against the appellant. The Affidavit of service indicated that the appellant was duly served with the NTSC. Learned counsel for the appellant argued that, since the service was not effected personally to the Respondent, then the same was not proper. The learned magistrate found that notwithstanding the manner in which the service was effected, the Respondent and His counsel were aware of the scheduled hearing of the NTSC and the Respondent ought to have attended court and respond to the NTSC. The learned Magistrate found that the appellant having been duly served with the NTSC and/or being aware of these proceedings and having failed to attend court to show cause why he should not be committed to civil jail and the contestation that the decretal sum was catered for in a judgment delivered in Nairobi ELC Case No. E003 of 2023 having been found to lack basis, the Notice to Show Cause (NTS C) was to be allowed and the appellant be committed to civil jail. The court found that the provisions of Order 22 Rule 34 of the Civil Procedure Rules, 2 10 (the said Rules) set out the threshold that has to be met and the standard to which the court ought to be satisfied before it issues an order for committal to civil jail for a defendant/judgment debtor. Rule 34 (2) of the said Rules states that: "Before making an order for the committal of the judgment-debtor to prison, the color reasons to be recorded in writing, shall be satisfied— 1. that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree— is likely to abscond or leave the local limits of the jurisdiction of the court; or has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed or removed any part of his property, or committed any other act of bad faith in relation to his property; or that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree, or some substantial part thereof, and refuses or neglects, or has refused or neglected, to pay the same, but in calculating such means there shall be left out of a count any property which is exempt from attachment in execution of the decree; or that the decree is for a sum for which the judgment-debtor was bound in a fiducially capacity to account." The learned magistrate cited the case of Mohamed Hussein Barre & another v Mohammed Tufow Roble [2021] eKLR, in the High Court while citing the decision in Zippora Wambui Muthara - Milimani BC Cause 19/2010 stated that before committing a judgment Debtor to civil jail, a trial court ought to be sure strict compliance with section 38 of the Civil Procedure Act, Cap 21, Laws of Kenya and Order 22 rule 31 (1) of the Civil Procedure Rules, 2010 to determine the Judgment Debtor's ability to pay. The court found that the provisions of section 38 of the Civil Procedure Act, Cap 21, Laws of Kenya are a replica of the provisions of Order 22 Rule 34 (2) of the Civil Procedure Rules, 2010 reproduced hereinabove and which he had already complied with. That, for one to be committed to civil jail, it must be shown that he has had the means to pay the decretal sum but has failed. That however, can only be done when the judgment Debtor submits himself before court for inquiry into that issue, among others. The court found that in this case, the appellant had not attended court and thus failed or otherwise refused to submit himself before court. The learned magistrate relied on section 40 (1) of the Civil Procedure Act, in regard to the arrest a d detention of judgment-debtors, provides as follows; * 1. A judgment-debtor may be arrested in execution of a decree at any hour and on any day, and shall as soon as practicable be brought before the court, and his detention may be in any prison of the district in which the court ordering the detention is situated, or, if such prison does not afford suitable accommodation, in any other place which the Minister may appoint for the detention of persons ordered by the courts of such district to be detained: The learned magistrate declined to issue an order for committal of the appellant to civil jail as applied for by learned counsel for the respondent but issued warrants of arrest against the Respondent. The said warrants of arrest were meant to ensure that the appellant is arrested not for his detention in civil jail, but for purpose of him being presented brought before the court as soon as practicable for further court orders as to his detention or not, after due consideration of the Notice to Show Cause (NTSC) pending before court. Accordingly, the court issued warrants of arrest against the appellant, Wilson Gachanja and that he be brought to court. The appellant filed this appeal praying that the ruling in Mombasa ELC Misc. No E045/2023 be set aside and be dismissed with costs. The appeal is made on grounds that the Honourable Magistrate erred in law by disregarding a duly filed and relevant affidavit dated 10th December filed by the appellant thus not considering the evidence therein and by holding that respondents notice to show cause to proceed for hearing as if there was no affidavit that had been filed by the appellant. The Honourable Magistrate erred in law and fact by failing to consider the fact that his order would result in a party being denied a chance to be heard thus contravening article 50 of the constitution which provides for the right to a fair hearing. The honourable magistrate erred in law in failing to appreciate that the court was bound under article 159[2] [d] of the constitution to render substantive justice. The honourable magistrate erred in law in failing to appreciate that the court should place substantive justice over procedural considerations especially where the infraction in curable. The Honourable Magistrate erred in law in failing to appreciate that he courts power to regulate its procedure and protect its proceedings should not be applied in a draconian manner to deny litigants a right to access court order article 48 and their right to a fair hearing under article 50 of the constitution unless in substantial and compelling circumstances. The appellant submits that the learned magistrate erred by disregarding a duly filed affidavit by the appellant and thereby condemned the appellant unheard. In a nutshell, the appellant submits that the court ought to have considered the affidavit without calling the appellant to personally attend court. The appellant submits that the court ought to have awarded costs for the late filing of affidavit and not issue warrant of arrest. The court shall not ignore the documents on record even if irregularly filed unless the filing thereof has prejudiced the other party in material respect. The court should have extended time to file the documents and allowed the decree holder to file a replying affidavit. The appellant submits that the respondent did not demonstrate any prejudice caused by the appellant’s late filing of the affidavit. The appellant submits that the right to be heard is a cardinal rule of Natural Justice. No one should be condemned unheard. The appellant was condemned unheard by the learned magistrate. The respondent on the other hand submits that the appellant did not comply with the timelines for the submissions and that his conduct has not been in good faith. The respondent submits that the court did not order the arrest and committal of the appellant to jail, but it was for his being brought to court for further orders for his detention or not after the consideration of the Notice to Show Cause. He contends that the court made its orders in compliance with Order 22 rule 34[2] of the Civil Procedure Rules 2010. Which requires that for one to be committed to civil jail it must be shown that he has the means to pay the decretal sum but has failed. The debtor must submit himself before court for inquiry. The respondent agrees that the appellant did not file the replying affidavit in tine and did not attend court and therefore the court issued warrant of arrest. I have considered the rival submissions by the parties. Order 22 rule 34[2] of the Civil Procedure Rules 2010 provides – * 1. Before making an order for the committal of the judgment-debtor to prison, the court, for reasons to be recorded in writing, shall be satisfied— 1. that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree— 1. is likely to abscond or leave the local limits of the jurisdiction of the court; or 2. has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed or removed any part of his property, or committed any other act of bad faith in relation to his property; or * 1. that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree, or some substantial part thereof, and refuses or neglects, or has refused or neglected, to pay the same, but in calculating such means there shall be left out of account any property which is exempt from attachment in execution of the decree; or 2. that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account. This court finds that in Notice to Show Cause the person cited or the debtor can chose to show cause through affidavit or attend court in person. In this case, the appellant chose to file affidavit. The affidavit was filed out of time but was on record when the court made its decision. The court proceeded as if the affidavit was not filed and therefore issued warrants of arrest against the appellant. I do find that the learned magistrate erred by not considering the affidavit filed by the appellant as it was already on record. The learned Magistrate ought to have been fair enough and allowed the appellant an extension of time to deem the affidavit as properly on record because it was the answer to the Notice to Show Cause. The right to be heard, especially when one is to face a jail term should not be wished away. The right to be heard is a cardinal rule of natural justice and should not be taken away without good reasons. The primary legal basis for the right to be heard is Article 50(1) of the Constitution of Kenya 2010. This article explicitly states that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. Additionally, Article 47 guarantees the right to fair administrative action. This ensures that any person whose rights or fundamental freedoms are likely to be affected by administrative action is given a hearing before such action is taken. The Fair Administrative Action Act, 2015 further operationalizes this right, requiring administrators to provide reasons for adverse actions and ensuring procedural fairness. This court finds that by failing to consider the replying affidavit filed by Wilson Gachanja before issuing the warrants of arrest of the said Wilson Gachanja the learned Magistrate erred in Law. The upshot of the above is that I do allow the appeal and set aside the ruling dated 29th January 2025. The matter is remitted back to the Chief Magistrates Court Mombasa for the hearing of the notice to show cause by a Magistrate other than Hon Yalwala Chief Magistrate. The same to be heard on a priority basis. Costs of the appeal to the appellant. SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ANTONY O. OMBWAYO** Mombasa Environment and Land Court Environment and Land Court Date: 2026-07-01 17:08:43