Wekesa v Murunga (Appeal E023 of 2021) [2022] KEELC 2377 (KLR)
The bottom line
#A Kenyan court refused to pause a judgment because the appeal didn't challenge the judgment itself—and confirmed debtors can be jailed for refusing to pay.
What this practically means
#Executive summary
#Key legal issues
#Whether an advocate may swear a replying affidavit on behalf of a party
The replying affidavit sworn by the respondent's advocate was properly on record because it deponed only to a chronology of formal, uncontroverted procedural events
Nothing in Order 19 or the Advocates Practice Rules bars an advocate from swearing an affidavit, but advocates should avoid deponing on contentious facts. Where the depositions concern purely legal, formal or uncontroverted matters - or where the party is unavailable - barring the advocate would impede justice and offend Articles 50 and 159(2)(d) of the Constitution. The affidavit here merely chronicled events confirmed by annexures and the applicant's own affidavit.
Whether stay of execution and proceedings could issue where the appeal does not challenge the decree
Stay could not issue because the memorandum of appeal challenged only the ruling dismissing the application to set aside the ex-parte judgment, not the decree and judgment themselves
The starting point was whether an appeal existed against the decree whose stay was sought. The memorandum of appeal disclosed an appeal only against the ruling of November 25, 2021. Since Order 42 Rule 6 stay is parasitic on an appeal against the decree or order appealed from, the application had no foundation and had to collapse.
Whether the applicant demonstrated substantial loss and offered security
The applicant failed on both limbs: nowhere did he allege substantial loss from removal of the structures, and he offered no security or undertaking
The substantive decree was a mandatory injunction to remove structures from the access road; the applicant never explained how its execution would cause him substantial loss, dwelling only on his impending arrest. On security, having not appealed the main decree, he should at least have offered to deposit part of the decretal sum of Kshs 281,175 or undertaken to abide by the court's terms, which he did not do.
Whether arrest and committal to civil jail in execution of a decree is unconstitutional
Committal to civil jail under Section 38(d) of the Civil Procedure Act and Order 22 Rules 34-35 is lawful, a last resort, and affords the debtor an opportunity to show cause
Section 38(d) expressly permits execution by arrest and detention in prison. Order 22 Rules 34(1) and 35 give a judgment debtor appearing on a notice to show cause or upon arrest an opportunity to explain why he should not be committed, committal being a last resort against a debtor able but refusing to pay. Arrest is therefore neither illegal nor unconstitutional and cannot constitute substantial loss.
Whether the applicant approached the court with clean hands
The applicant's failure to attend court and collusion with police to secure his release after arrest disentitled him to the discretionary equitable remedy of stay
Stay is a discretionary, equitable remedy requiring clean hands. Unrebutted evidence showed the applicant failed to attend court on a notice to show cause, was arrested on January 18, 2022, and colluded with the arresting officers to be released without presentation to court. Such disregard for judicial process bars him from seeking the court's protection.
Legal principles established
#- An application for stay of execution under Order 42 Rule 6 can only be anchored on an appeal against the decree whose stay is sought
- Committal to civil jail in execution of a decree is a lawful mode of execution and not unconstitutional; arrest is not an end in itself and the judgment debtor will have an opportunity to show cause
Court orders
#- 1.The Notice of Motion dated January 20, 2022 is dismissed with costs
- 2.The interim orders of stay issued on January 26, 2022 are vacated
- 3.The Applicant shall present himself before the trial Magistrate at Kimilili Court on July 6, 2022 at 9 am in compliance with the warrant of arrest
- On appeal from
- Kimilili Principal Magistrate's Court
- Kimilili PM ELC Case No 17 of 2018
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wekesa v Murunga (Appeal E023 of 2021) [2022] KEELC 2377 (KLR)", Case Analysis (2022). Bungoma ELC Appeal No E023 of 2021 (Notice of Motion dated January 20, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2377/eng@2022-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.