Kelvin Mwakaba and Bethuel Nguta vs Thomas Wandeto Kimbio

proceedings and orders made or taken on the 7th day of July 2026 and allow the appellants opportunity to contest the Notice to Show cause herein. 4. such further and other orders and or directions be made and or granted as this court deems fit and expedient in the circumstance. 5.The cost hereof be provided for.” 2. The Application is supported by affidavit sworn by Calvin Mwakaba Mwasungia on the 1 6 . 7 . 2 0 2 6 and grounds on the face thereof of even date. 3. The 1st Appellant averred that on 16th July 2026, while checking his email for communication from the Court of Appeal, he discovered an unread email from the Respondent’s advocates, Mwazighe & Company Advocates, containing court documents. Upon consulting their advocates, the Appellants learnt that the Notice to Show Cause had proceeded ex parte on 7th July 2026. 4. The Appellants averred that they were not aware of the hearing date and that their failure to attend was neither deliberate nor intended to obstruct the proceedings. 5. The Applicant contended that execution of the warrants of arrest and their possible committal to civil jail would occasion substantial prejudice and loss of liberty, with consequences that could not adequately be on appeal. They deposed that they are the sole breadwinners for their respective families and that their detention would adversely affect their dependants. 6. The Appellant deposed that their appeal has reasonable prospects of success and expressed their willingness to comply with any reasonable conditions that the Court may impose. Page 2 of 9

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7. The Respondent, Thomas Wandeto Kimbio, swore the Replying Affidavit on 22.07.2026. deposing that the Appellants were duly served with the Notice to Show Cause prior to issuance of warrants of arrest. The Respondent maintained that the Appellants’ assertion that they were not aware of the proceedings is untenable, particularly in view of their continued communication regarding the matter through their last known email addresses. 8. He deposed that the Appellants had previously sought a stay of execution pending appeal, which relief was declined by the Court of Appeal on two occasions. He therefore contended that the present Application is an abuse of the court process, intended to delay the conclusion of the matter. 9. The Respondent consequently opposed the Application and urged the Court to dismiss it with costs. B. Directions of the Court 10. The court with consent of the parties, directed that the Application be canvassed by way of written submissions. 11. Respondent filed his submissions dated 29th July, 2026. The Appellants are yet to comply. C. Submissions by Parties 12. The Respondent submitted that Appellants’ Application dated July 16th ,2026 sought inter alia, stay of execution of the warrants of arrest pending inter partes determination, setting aside of the ex parte proceedings and orders issued on 7th July 2026, leave to contest the Notice to Show Cause and costs of the Application. 13. The Respondent submitted that the Application is devoid of merit, ought to be dismissed as the Appellants were duly served with the Notice to Show Cause, as supported by the Page 3 of 9

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Affidavit of Service dated June 13th , 2026. Having been served and made aware of the proceedings, their failure to attend was deliberate. The allegation of non-service is therefore unsupported. They contended that the warrants of arrest and committal to civil orders were lawfully issued pursuant to section 38 of the Civil Procedure Act and Order 22 of the Civil Procedure Rules,2010. The Respondent relied on Innocent G. Ondiek v Julius Nakaya Kabole [2019] eKLR for the proposition that a challenge to committal proceedings principally turns on the validity of service. In the absence of any demonstrated defect in service, there is no basis for setting aside the orders. The Respondent further relies on Grand Creek LLC & Another v Nathan Chesangmoson [2015] eKLR in support of the proposition that issuance of warrants following failure to attend or respond to a Notice to Show Cause is not, in itself, a violation of due process. 14. The Respondent urged that the Court is functus officio in respect of the orders already made and that, if dissatisfied with the decision, the Appellants’ proper recourse lies in an appeal rather than an application seeking to reopen or vary the Court’s determination. 15. On costs, the Respondent invokes section 27(1) of the Civil Procedure Act and Party of Independent Candidate of Kenya v Mutula Kilonzo & 2 Others [2013] eKLR, submitting that costs ordinarily follow the event. No exceptional circumstances have been demonstrated to warrant departing from that principle. 16. The Respondent therefore urges the Court to find the Application dated 16th July 2026 not meritorious and dismiss it in its entirety, with costs to the Respondent. D. Issues for determination; Page 4 of 9

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17. . Upon considering the Application, the Replying Affidavit, the Annexures, the Respondent’s submissions, cited authorities and the Court’s record, the following Page 5 of 9

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issues arise for determination: (i) Whether the Application for Stay of Execution of warrants of arrest and Setting Aside Ex-Parte Orders is Merited (ii) Who Should Bear the Costs of the Application? E Analysis and Determination: (i)Whether the Application for Stay of Execution of warrants of arrest and Setting Aside Ex-Parte Orders is Merited The court rendered its decision on 7.7.2026, The Court has considered the contention that, having issued the execution and warrants of arrest orders, it is functus offi cio and that the Appellants’ recourse lies solely in an appeal. The present application is ancillary to execution of the decree and seeks, among other things interrogation of circumstances under which the warrants were issued based on the applicable statutory provisions of law. 18. 19. The Court retains jurisdiction, under its inherent powers pursuant to Section 3A of the Civil Procedure Act ,2010 and the applicable provisions of Order 22 of the Civil Procedure Rules 2010, to supervise and regulate its own execution process and, where sufficient cause is demonstrated, to vary or set aside orders made ex parte. The principle of functus officio does not bar a court from correcting or revisiting an interlocutory or execution order where the law expressly or inherently permits such intervention. This court retains the jurisdiction to stay execution of own decree and/or order based on the circumstances of each case hence not functus officio. 20. Section 38 of the Civil Procedure Act,2010 empowers the Court to enforce a decree, including by arrest and detention where Page 6 of 9

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the statutory requirements are met. The Court is therefore satisfied that the warrants were properly issued pursuant to the execution process and cannot, in the circumstances, be faulted because the Appellants subsequently failed to attend the Notice to Show Cause hearing. 21. This Court has considered the circumstances leading to the issuance of the warrants of arrest. The record shows that the Appellants were served with the Notice to Show Cause through the email addresses previously used by them in communicating on the matter. The Affidavit of Service dated June 13th ,2026 and the relevant email correspondence, annexed as TWK-1 and TWK-2, respectively, support that position. The Appellants have not disputed ownership or use of those email addresses. In the circumstances, the Court is not satisfied that the Appellants were not aware of the Notice or hearing date of July 7th , 2026. Their failure to attend, while actively following the proceedings, has not been satisfactorily explained. 22. As to whether the warrants of arrest ought to be stayed in light of the Appellants’ alleged risk of loss of personal liberty, as against the Respondent’s right to enjoy the fruits of a valid judgment, it is trite that Stay of execution of a decree is a discretion of the court as provided under Order 22 rule 22 of the civil procedure rules 2010 subject to consideration of the circumstances of each case as restated in the case of Zlatko Rostocil v James Samuel Kinyanjui [2013] KEHC 3740 (KLR). In the present case, the Appellants have not demonstrated any compelling circumstances or sufficient cause warranting interference with the execution process. The decree remains valid and not satisfied, and the Respondent is entitled to pursue its lawful execution. The Court is therefore not satisfied that the 23. Page 7 of 9

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alleged risk of loss of personal liberty by applicants/appellants constitutes sufficient ground to stay or recall the warrants of arrest. 24. Order 22 rule 33 of the civil procedure rules 2010 provides for payment into court of such sums as may be sufficient for subsistence of the judgment debtor from time of his arrest until he can be brought before the court whereas Rule 34 thereof provides for appearance of the judgment debtor in court after arrest and being accorded a chance to show cause why he cannot be committed to civil jail in execution of the decree. The Applicant has not been arrested or brought to court for hearing why he should not be committed to civil jail. The judgment creditor has not paid into court such sums as may be sufficient for subsistence of the judgement debtor from the time of his arrest util the time he will be brought before court. The Applicants /Appellants right to liberty has not been infringed. I find no sufficient basis for staying the warrants of arrest or otherwise interfering with the execution process. 25. In balancing the Appellants’ interests against the Respondent’s right to enjoyment of the fruits of his judgment, and being guided by the case of Grand Creek LLC & another v Nathan Chesangmoson [2015] KEHC 2288 (KLR) where it was held that:- A warrant of arrest merely secures the judgment-debtor’s attendance before the Court and does not amount to automatic committal to prison as the judgement creditor has to comply with the provisions of order 22 rules 33 and 34 of the civil procedure rules 2010 prior to committal of judgment debtor to civil jail”, the court finds that the safeguards provided for under order 22 rules 33 and 34 of the civil procedure rules 2010 as applicable in this case have not been complied with by the Respondents hence find no basis to recall and/or set aside the warrants of arrest and committal warrants to civil jail pending hearing and determination of Page 8 of 9

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appeal. F. Who to pay costs: 26 Costs follow events pursuant to section 27 of the Civil Procedure Act,2010 though the court retains discretion to award costs based on circumstances of each case. In the circumstances the Court directs costs be awarded to the Respondents. G. Final Orders The Notice of motion dated 7.7.2026 is not merited hence dismissed with costs to the Respondents. It is ordered accordingly. Dated, Signed and Delivered September 2026 at Voi on HON. J. A. ORWA JUDGE In presence of: Mr. Juma for the Appellants/Applicants Mr. Mwasighe for the Respondents. Letisia - Court Assistant Page 9 of 9 this 23rd day of

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