Rajendra Ratilal Sanghani & 1 other v George Wainaina

additional KES 8,000,000, making a total of approximately KES 17,000,000 against a decretal sum of KES 22,065,000. 4. Relying on Benson Ogina Ogallo v Samson Omuombo Odido [2021] KEHC 5032 (KLR), the Applicant submitted that committal to civil jail under Section 38 of the Civil Procedure Act is a measure of last resort and should not be invoked where a judgment debtor is actively attempting to settle the decree. He further argued that incarceration would disable him from generating the remaining alleged balance of KES 5,065,000. 5. The Applicant therefore seeks leave to appeal, stay of execution of the warrants of arrest, and reasonable time to settle the outstanding balance. 6. The Respondent/Decree Holder vehemently opposed the application through a replying affidavit dated 21st October 2025. It was deponed that the Application amounts to a re-litigation of issues already determined and thus res judicata. 7. The Respondent disputed the Applicant’s alleged payments, asserting that only KES 9,000,000 has been paid in total; KES 7,500,000 by August 2024 and KES 1,500,000 thereafter, leaving an outstanding balance of KES 13,065,000. 8. The Respondent further pointed out that the Applicant breached a consent judgment dated 17th October 2023 and failed to honour a sworn undertaking dated 9th December 2024, in which he undertook to clear the balance within three months. 9. It was submitted that the Applicant’s conduct amounts to an abuse of the court process and that the Decree Holder is entitled to enjoy the fruits of a lawful judgment. Reliance was placed on James Gathirwa Ngugi v Multiple Hauliers (EA) Ltd [2016] eKLR and Otieno v Chelisa & Another [2023] KEHC 1674 (KLR) to urge dismissal of the Application with costs. 10. The Application was canvassed by way of written submissions. The Applicant’s submissions are dated 16th March 2026, while those of the Respondent are dated 18th March 2026. Analysis and Determination 11. I have carefully considered the Application, the rival affidavits, the submissions by both parties, and the applicable law. The sole issue for determination is whether the Applicant is entitled to leave to appeal and stay of execution of the warrants of arrest. 12. It is not contested that an order directing arrest and committal in execution proceedings is appealable only with leave under Section 75 of the Civil Procedure Act. Leave, however, is discretionary and will only be granted where an applicant demonstrates arguable grounds of appeal. 13. The Applicant’s principal argument is that he has substantially satisfied the decree and that committal to civil jail is premature and punitive. He relies on judicial authority to the effect that imprisonment ought to be employed only as a last resort. 14. The Respondent, on the other hand, contends that the Applicant is a serial defaulter whose conduct disentitles him from the Court’s discretion. 15. From the record before the Court, the following facts are incontrovertible: a. The parties entered into a final consent settlement on 17th October 2023 for the sum of KES 22,065,000. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5292/eng@2026-04-10 2

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b. The Applicant defaulted on the court-ordered monthly instalments of KES 1,000,000 after August 2024. c. On 9th December 2024, the Applicant swore an affidavit undertaking to settle the balance within three months, expressly inviting the Court to take “appropriate action” in default. 16. Despite these indulgences, the Applicant repeatedly failed to honour both the consent judgment and his own sworn undertaking. His alleged payments are disputed and unsupported by credible proof sufficient to displace the Respondent’s position. 17. In these circumstances, the Applicant cannot be heard to invoke the equitable discretion of the Court. To grant a stay at this stage would be to aid a litigant who has persistently obstructed execution and treated court orders with casual indifference. 18. Courts exist to resolve disputes conclusively, not to perpetuate them. As was stated in Mary N. Njehia v National Bank of Kenya Ltd [2017] eKLR, repeated litigation and disregard of settled matters undermine the integrity of the judicial process. 19. In the absence of an arguable appeal, the prayer for leave fails. Without leave, the application for stay is rendered untenable. 20. The upshot of the foregoing is that the Defendant’s Application dated 11th August 2025 is hereby dismissed with costs to the Plaintiffs/Decree Holders. 21. It is so ordered. DATED, SIGNED, AND DELIVERED AT NAIROBITHIS 10TH DAY OF APRIL 2026 HON. MR. JUSTICE MOSES ADO JUDGE OF THE HIGH COURT In the presence of: C/A – Moses Ms. Njiru.…………………. for the Defendant/Applicant Mbugua h/b for Kago……. for the Plaintiff/Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5292/eng@2026-04-10 3

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