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ELCPartially AllowedELC No. 126 (B) of 2011 (formerly High Court Mombasa)· [2026] KEELC 440 (KLR)

Mhandisi Enterprises Limited v Chimwega & 8 others (Environment and Land Case 37 of 2021) [2026] KEELC 440 (KLR)

Environment and Land Court of Kenya
3 February 2026
3,918 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a bid to jail debtors because the creditor skipped a mandatory notice-to-show-cause step before execution.

What this practically means

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Executive summary

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The Plaintiff/Decree Holder, Mhandisi Enterprises Limited, moved the Environment and Land Court at Kwale by Notice of Motion dated 22nd May 2025 under Section 38 of the Civil Procedure Act and Order 22 Rule 18 and Order 51 of the Civil Procedure Rules, 2010, seeking the arrest and committal to civil jail of the 1st and 2nd Defendants/Judgment Debtors, Mohammed Swallehe Mwajembe and Rama Omari Chimwenga, for up to six months, plus costs. The application rested on a judgment of 12th October 2022 declaring the Plaintiff proprietor of LR No Kwale/Diani Beach Block/653, cancelling the Defendants' titles, ordering eviction within 90 days and a permanent injunction, together with a certificate of costs issued on 5th April 2024. The Defendants opposed via a preliminary objection, grounds of opposition and a joint replying affidavit, contending the application was brought under wrong provisions, violated Article 48, and that they were never served with execution process; they also noted a notice of appeal filed in October 2022. The court framed four issues, applied Mukisa Biscuits and Attorney General v Andrew Mwaura Githinji, and found the preliminary objection properly raised on a pure point of law but lacking merit, since arrest and committal is a lawful mode of execution and a notice of appeal without stay does not bar execution. However, because the decree was over a year old and no notice to show cause under Order 22 Rule 18 had been issued or served, the application failed. The preliminary objection was overruled, the Notice of Motion dismissed, and each party ordered to bear its own costs.

Key legal issues

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01

Whether the preliminary objection met the threshold for a preliminary objection

Holding

It did: the objection was raised on a pure point of law concerning the relevance of the legal provisions relied upon, requiring no evidence.

Reasoning

Applying the Mukisa Biscuits test and the Attorney General v Andrew Mwaura Githinji principles, the court held that the objection challenged the propriety of the provisions cited in the application, a matter of law that does not require ascertaining facts, and thus satisfied the threshold.

p. 7
02

Whether the preliminary objection was meritorious

Holding

It was not; the application was premised on the correct provisions and the existence of the judgment and decree was undisputed.

Reasoning

The court found that arrest and detention is a recognised mode of execution in cases of contempt of court orders, and that the decree had not been stayed, varied, set aside or appealed successfully. A notice of appeal filed in 2022 had not been pursued and no stay of execution existed, so execution proceedings could lawfully be brought.

p. 7
03

Whether the Notice of Motion met the threshold for arrest and committal to civil jail

Holding

It did not; the mandatory procedure of issuing a notice to show cause under Order 22 Rule 18 before execution, given that more than a year had elapsed since the decree, was not followed.

Reasoning

The judgment was delivered on 12th October 2022 and the certificate of costs issued on 5th April 2024, more than a year later. Order 22 Rule 18(1) and (2) required a notice to show cause before any step in execution. No such notice was proved served on the judgment debtors, making any arrest and committal orders irregular and unlawful.

p. 8
04

Who bears the costs

Holding

Each party to bear its own costs as neither succeeded.

Reasoning

The court noted that costs are discretionary and follow the event under Section 27(1) of the Civil Procedure Act. Since both the application and the preliminary objection failed, the proper order was that each party bears its own costs.

p. 8

Legal principles established

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  • A preliminary objection is a pure point of law which can be upheld without ascertaining facts or exercising discretion, following Mukisa Biscuits
  • Filing a notice of appeal does not bar execution of a decree; only a stay of execution can halt implementation
  • Where an application for execution is made more than one year after the date of the decree, a notice to show cause must issue before execution steps are taken
  • Costs follow the event under Section 27(1) of the Civil Procedure Act

Court orders

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  1. 1.The Notice of Preliminary Objection dated 25th July 2025 raised by the Respondents be and is hereby overruled for lack of merit
  2. 2.The Notice of Motion application dated 22nd May 2025 by the Plaintifi/Applicant be and is hereby dismissed for lack of merit
  3. 3.Each party to bear its own costs for both the application and preliminary objection
Jurisdiction invoked
Section 38 of the Civil Procedure Act, Cap. 21; Order 22 Rule 18 and Order 51 of the Civil Procedure Rules, 2010 (execution and committal jurisdiction of the High Court/ELC)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mhandisi Enterprises Limited v Chimwega & 8 others (Environment and Land Case 37 of 2021) [2026] KEELC 440 (KLR)", Case Analysis (2026). ELC No. 126 (B) of 2011 (formerly High Court Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/440/eng@2026-02-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.