Stephen Williamson Nyambuka v Eunice Catherine Muturi

Replying Affidavit 4. The Respondent has filed a Replying Affidavit dated 1/12/2025 in opposition to the Application, in which he has deposed that the Application is incompetent and an abuse of the court process and that the Applicant has not advanced sufficient grounds to warrant lifting of the warrants of arrest. 5. The Respondent deposed that judgment was entered in the sum of Kshs 1,290,000 on admission out of which the Applicant has paid Kshs 350,000 leaving a balance of Kshs 960,000; that the Applicant has been frustrating the Respondent’s efforts to execute the decree; that the Applicant has gone into hiding after the warrants of arrest were issued and that the Application is frivolous, vexatious and misconceived and ought to be dismissed with costs. 6. The Applicant filed a further affidavit in which he deposed that he has made payments totaling Kshs 483,000 and that his application is properly anchored in law. He denied the allegations of evading to settle the decretal sum. Submissions 7. The Application was canvassed through written submissions. The Applicant submitted that he has advanced sufficient reasons why the orders he seeking should issue by demonstrating that due to harsh economic times brought about by ill health and other factors, he has not been able to settle the decretal amount; that he is willing to pay the debt and urged the court to find recourse under Article 159 of the Constitution and allow alternative means of dispute resolution. 8. The Applicant cited Order 21 Rule 12 of the Civil Procedure Rules on the issue of postponement of payment of money and that the payment can be done in instalments. He submitted that this court has discretion to order payment in instalments, urging that he has been acting in good faith towards settling the debt. 9. The Respondent submitted that this court ought to consider the special circumstances of this case in that the Applicant has ample time to satisfy the decree but elected to not do so; that the Applicant is asking this court to set aside the warrants of arrest but does not say to what end given that he has not filed an appeal or preferred an appeal. 10. The Respondent submitted that he has a right to enjoy the fruits of the judgment and that the proposal made by the Applicant to be allowed to pay in instalments is unacceptable as it is not backed by the law; that a successful party has only three means of execution: by warrant of attachment, by warrants of arrest and by taking out garnishee proceedings. He submitted that in this case the method adopted of warrants of attachment is the only reasonable and realistic one since the Applicant’s attachable assets cannot be ascertained. 11. The Respondent urged that the court in exercising its discretion ought to balance the rights of an appellant or an intending appellant with those of a decree holder. The Respondent relied on Machira t/a Machira & Co. Advocates v East African Standard (No.2) [2002] KLR 63 and Thuo v Waliula (Civil Appeal 008 of 2025)[2025]KEHC 2259 (KLR) (14 February 2025) (Ruling), among others. 12. The Respondent urged that the Application is ill conceived and was made in bad faith and ought to be dismissed with costs. Analysis and Determination 13. I have considered the Application, the Replying Affidavit and rival submissions. I note that prayer 2 is spent and that the only prayers pending determination are prayers (iii) and (iv) which seeks to have the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7398/eng@2026-04-20 2

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aforesaid warrants of arrest lifted, suspended or recalled and acknowledgment and record of the partial payments already made by the Applicant towards the settlement of the decretal sum. 14. It is a matter of general legal principle that to grant or declined to set aside or vary an order, judgment or any consequential decree or order, is a matter of discretion. The rationale for the discretion of the court to set aside or vary an order, judgment or any consequential decree or order was spelt out in Shah v Mbogo and Another [1967] E.A 116 as follows: “ The discretion to set aside an ex-parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.” 15. In the present instant application, it is not disputed that judgment was delivered in favour of the Respondent, in the sum of Kshs. 1,290,000/- pursuant to the Claim which was lodged with the Tribunal. From the record, it is apparent that the Applicant did not satisfy the decree, causing the Respondent to apply for and obtain warrants of arrest which now form the crux of the instant application. 16. The Applicant has advanced a case that unless the warrants of arrest are lifted, suspended or otherwise recalled, he stands to suffer irreparable harm including the loss of his livelihood and social stigma, health challenges and a denial of the opportunity to be present for his school-going children, particularly his son who is living with special needs. 17. On the other hand, the Respondent has faulted the Applicant for only paying a small portion of the decretal amount and thereafter failing to comply. The Respondent has further averred and submitted that it has since been difficult to execute the decree against the Applicant, thereby necessitating issuance of warrants of arrest upon the Applicant’s failure to show cause as to why the same should not issue and that this application is merely a delaying tactic and an attempt by the Applicant at absconding his duty of settling the decree whilst frustrating the Respondent’s attempts at enjoying the fruits of her judgment. 18. I have considered the rival positions taken by respective parties. I am alive to the legal principle that a successful party is entitled to enjoy the fruits of his or her judgment, as echoed in Republic v Minister for Land & 2 Others ex parte Kimeo Stores Ltd (2011) eKLR and Kenya National Examination Council v Republic exparte Geoffrey Gathenji Njoroge & Others CA Civil Appeal No. 266 of 1996. 19. The issuance of warrants of arrest constitutes one of the various modes of execution permissible and provided for under Section 38 of the CPA. Similarly, under Order 22, Rule 31 of the CPR, a court can exercise its discretion by making an order for issuance of warrants of arrest upon a judgment debtor’s failure to show cause as to why the same should not be issued. Therefore, this mode of execution is anchored in law. This position is recognized by the courts as shown in Innocent G. Ondieki v Julius Nakaya Kabole [2019] KEHC 7647 (KLR), where the court stated that: “ In Jedida Chepkoech Mutai (Suing as The Legal Representative of the Estate of Julius Kipkorir Mutai (Deceased) vs. Cherono Beatrice [2018] eKLR, it was stated that ‘As I understand it, the general position in law is that the arrest contemplated under section 38 and 40 of the Civil Procedure Act is not unconstitutional. All that is required in proceeding under the two provisions is that there has to be strict adherence to the law. In Jane Wangui Gachoka vs Kenya Commercial Bank Limited [2013] eKLR, the petitioner asked the court to declare sections 38(d) and 40 of the Civil Procedure Act and Order XX1 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7398/eng@2026-04-20 3

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Rules 32,33 of the Rules which allowed for commitment to civil jail for non-payment of a debt as archaic and unconstitutional. In declining to make the declaratory orders sought by the petitioner, the court stated as follows: “(33) The deprivation of liberty sanctioned by sections 38 and 40 of the Civil Procedure Act is permissible and is not in violation of either the Constitution or ICCPR. The caveat, however, which has been emphasized in all the cases set out above is that before a person can be committed to civil jail for nonpayment of a debt, there must be strict adherence to the procedures laid down in the Civil Procedure Act and Rules, which provide the due process safeguards essential to making limitation of the right to liberty permitted in this case acceptable in a free and democratic society.” 20. Relating to the above case, I have noted that the manner and the procedure relating to the issuance of the warrants of arrest in this instance have not been challenged. Therefore, the issue is whether the warrants of arrest issued herein ought to be varied in the manner prayed in this application. 21. Taking into account that the Respondent is entitled to enjoy the fruits of her judgment, I am enjoined by the law to balance the competing interests of the parties herein. 22. I have considered all the material placed before me by the Applicant, including a copy of a pay slip for the month of August, 2025 issued by Topscore Consultants Co. Limited, to demonstrate that he had been employed and earning a salary at all material times. In view of the foregoing, it is reasonable to state that the subsisting warrants of arrest, if effected, would not only deprive the Applicant of his right to liberty but would further jeopardize his right to earn a livelihood. 23. I have also noted the Applicant’s expression of his willingness to settle the decretal amount and his argument that committing him to civil jail would not necessarily guarantee the Respondent’s realization of the fruits of her judgment. 24. In view of all the foregoing circumstances and upon balancing the competing interests of the parties herein, I am of the view that it would be a proper exercise of my discretion to temporarily suspend the warrants of arrest in accordance with the final orders as shall be reflected at the conclusion of this ruling. 25. In respect of prayer (iv) which seeks to have this court acknowledge and record the payments so far made by the Applicant towards settlement of the decretal sum, I have considered the submissions of the parties on this issue. The Applicant’s proposal to settle the balance of the decretal sum in monthly instalments of Kshs 10,000 was not accepted by the Respondent who has termed it as unreasonable. 26. I have noted that in the case of Mwangi Kengara & Company Advocates v Kibe [2023] KEELC 20054 (KLR), the court laid out the following principles for consideration in determining whether to make an order for payment of a decretal sum by way of instalments: “ In the case of Diamond Star General Trading LLC v Ambrose D O Rachier carrying on business as Rachier & Amollo Advocates [2018] eKLR, G L Nzioka J relied on order 21 rule 12(2) to exercise his discretion to allow the applicant pay the decretal sum in instalments. The Judge cited with approval the case of Kshs.Vaji Jethabhai & Bros Limited V Saleh Abdulla [1959] EA 260 which laid down the principles that should guide the court in exercising its discretion as follows: a. whilst creditors’ rights must be considered each case must be considered on its own merits and discretion exercised accordingly; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7398/eng@2026-04-20 4

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b. the mere inability of a debtor to pay in full at once is not a sufficient reason for exercise of the discretion; c. the debtor should be required to show his bona fides by arranging prompt payment of a fair proportion; d. Hardship of the debtor might be a factor, but it is a question in each case whether some indulgence can fairly be given to the debtor without prejudicing the creditor.” 27. The shows that the Applicant has paid a total sum of Kshs. 390,000/- as seen in the copies of M-pesa transaction ETRs marked as Annexure “SKN-2” attached to his supporting affidavit. No contrary material has been tendered to refute the receipt of the above sum. In the circumstances, the sum of Kshs. 390,000/- would therefore constitute the sums made towards settling the decretal sum. 28. Be that as it may, upon my consideration of the proposal by the Applicant on the manner in which he desires to settle the remaining balance on the decretal sum, I do not find the same to be viable in the circumstances. While the Applicant tendered evidence indicating that his net salary as at August, 2025 was Kshs. 44,150/-, it cannot be overlooked that the remaining balance on the decretal sum is substantial and hence it would be unreasonable and unfair for the Applicant to be permitted to make significantly small payments of Kshs. 10,000/- each month until settlement thereof. 29. On the same note, the proposal by the Applicant to dispose of his property mentioned hereinabove is similarly not viable, since the process of sale is often a long and tedious one and further, no valuation report has been tendered to enable this court to ascertain the value of the said property and whether the same would be sufficient in settling the remaining balance. 30. Consequently, I hereby allow the Notice of Motion dated 20.11.2025 and make the following orders: 31. a. The warrants of arrest issued on 17.11.2025 by the Cooperative Tribunal be and are hereby suspended on the condition that the Applicant shall pay the sum of Kshs. 300,000/- to the Respondent within a period of 60 days from today’s date. Subsequently, the Applicant shall make monthly payments for a sum of Kshs. 50,000/- on or before the 5th of every month with effect from 5th July, 2026 until payment in full. b. In default of any of the payments stipulated above, the suspension order shall automatically lapse and the Respondent shall be at liberty to proceed with the execution. c. The sum of Kshs. 390,000/- be and is hereby acknowledged and recorded as partial payment already made by the Applicant towards settlement of the decretal sum. d. The costs of this application shall be borne by the Applicant. It is so ordered. DATED, SIGNED AND DELIVERED THIS 20TH DAY OF APRIL 2026. S. N. MUTUKU JUDGE In the presence of: 1. …………………… for the Applicant 2. …………………… for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7398/eng@2026-04-20 5

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