Caselaw

REPUBLIC OF KENYA IN THE CHIEF MAGISTRATE’S COURT AT NAKURU CIVIL SUIT NO. E1305 OF 2021 AP NDEGE, SPM BETWEEN SAWA SAWA SUPPLIERS LTD........................ PLAINTIFF/ DECREE HOLDER AND PETER MARAGURI NJOGU...............1ST DEFENDANT/ JUDGMENT DEBTOR ERINPET ENTERPRISES LTD…….2ND DEFENDANT/ JUDGMENT DEBTOR RULING 1. Peter Maraguri Njogu, the judgment debtor, took out this Notice of Motion dated 04/04/2025, brought under Order 51 Rule 1, Order 21 Rule 12 (1), Order 22 Rule 22(1) of the Civil Procedure Rules, and Sections 63 (e), 1A, and 3A of the Civil Procedure Act, Cap 21 Laws of Kenya. He is seeking an order that the Warrant of arrest currently in force against him be canceled and/or revoked.

page 1 of 11

republicpfkenyainthechiefmagistrate’scourtatnakurucivilsuitno1305of2021apndegespmbetweensawasawasuppliersl imitedplaintiffjudgmentcreditorandpetermuragurinjogu1stdefendantjudgmentdebtorerinpetenterpriselimited2nddef endantjudgmentdebtorruling The Applicant further seeks an order that the he be allowed to liquidate the decretal amount in equal monthly installments of Kshs. 50,000.00 until payment in full and that the costs of the application be in the cause. 2. The grounds in support of the application are stated on the face of the application and in the Supporting Affidavit sworn by the Applicant on 04/04/2025. In sum, the Applicant has acknowledged being indebted to the plaintiff/decree holder in the sum of Kshs. 11,950.00 as per the consent dated 21/06/2022. That there are warrants of arrest currently in force and that he is apprehensive that he shall be arrested at any time and committed to civil jail in satisfaction of the decretal amount. That he has been following up with the government in respect to his compensation for loss of business. He has attached medical documents to prove that his failure to attend court on 02/04/2025 was occasioned by the fact that he is suffering from acute pneumonia and blood pressure which could not allow him to travel from Karatina to Nakuru. That further, failure by his advocate to attend court was not intentional as he was also indisposed and had instructed another advocate to hold his brief but that he did not attend his brief. That since June 2022, he has not received his compensation because of bureaucracy at the National Lands Commission. That he has a family to sustain and bound to other obligations as well. That he is not possessed of sufficient means to liquidate the loan in one lump sum. That he is Page 2 of 11

page 2 of 11

republicpfkenyainthechiefmagistrate’scourtatnakurucivilsuitno1305of2021apndegespmbetweensawasawasuppliersl imitedplaintiffjudgmentcreditorandpetermuragurinjogu1stdefendantjudgmentdebtorerinpetenterpriselimited2nddef endantjudgmentdebtorruling willing to pay and offset the amount due and owing in equal monthly installments of Kshs. 50,000.00 on the 15th day of every month until payment in full. That he will suffer great prejudice and irreparable loss if this Honorable Court fails to grant the orders sought upon such terms as are just. 3. The Application is opposed and was canvassed through written submissions. The Applicant submitted that he has advanced sufficient reasons why the orders he is seeking should issue by demonstrating that due to harsh economic times brought about by ill health and other factors, including his business having been razed by public exigency, and a family teetering on despair’s edge, 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 Articles 28 and 47 of the Constitution and allow the application in toto. 4. 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. 5. 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 Page 3 of 11

page 3 of 11

republicpfkenyainthechiefmagistrate’scourtatnakurucivilsuitno1305of2021apndegespmbetweensawasawasuppliersl imitedplaintiffjudgmentcreditorandpetermuragurinjogu1stdefendantjudgmentdebtorerinpetenterpriselimited2nddef endantjudgmentdebtorruling decree but elected to not do so; that this application is one of the various selfcirculating schemes innovated by the applicant as part of the abuse of the court processes only intended to delay satisfaction of decretal sum and to circumvent lawful execution proceedings. That this application is an elaborate measure to evade payment of a just debt. That the applicant has failed to meet the legal threshold required to vary or set aside a consent order. The Respondent further submitted that he has a right to enjoy the fruits of the judgment which was entered by consent and that the proposal made by the Applicant to be allowed to pay in instalments is unacceptable as it shall take a substantial amount of time to clear the payment of the decretal amount herein. 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 6. I have considered the Application and rival submissions. I note that prayer 2 is spent and that the only prayers pending determination are prayers (3), (4) and (5) which seeks to have the aforesaid warrants of arrest cancelled and/or revoked, that the decretal sum be liquidated in equal monthly instalments of Kshs. 50,000.00 and costs of the application. Page 4 of 11

page 4 of 11

republicpfkenyainthechiefmagistrate’scourtatnakurucivilsuitno1305of2021apndegespmbetweensawasawasuppliersl imitedplaintiffjudgmentcreditorandpetermuragurinjogu1stdefendantjudgmentdebtorerinpetenterpriselimited2nddef endantjudgmentdebtorruling 7. 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. 8. In the present instant application, it is not disputed that judgment was entered by consent in the sum of Kshs. 11,950,000/- pursuant to the Claim herein. 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. 9. The Applicant has advanced a case that unless the warrants of arrest are revoked, he stands to suffer irreparable harm including the loss of his livelihood and social and family stigma, health challenges and a denial of the opportunity to be present for his family. Page 5 of 11

page 5 of 11

republicpfkenyainthechiefmagistrate’scourtatnakurucivilsuitno1305of2021apndegespmbetweensawasawasuppliersl imitedplaintiffjudgmentcreditorandpetermuragurinjogu1stdefendantjudgmentdebtorerinpetenterpriselimited2nddef endantjudgmentdebtorruling 10.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 the applicant was duly paid his compensation by the National Lands Commission which could have paid a substantial amount of the decretal sum herein, 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 his judgment. 11.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. 12.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 Page 6 of 11

page 6 of 11

republicpfkenyainthechiefmagistrate’scourtatnakurucivilsuitno1305of2021apndegespmbetweensawasawasuppliersl imitedplaintiffjudgmentcreditorandpetermuragurinjogu1stdefendantjudgmentdebtorerinpetenterpriselimited2nddef endantjudgmentdebtorruling 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 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 non-payment 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.” 13.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 substantially challenged. Therefore, the issue is whether the warrants of arrest issued herein ought to be varied in the manner prayed in this application. Page 7 of 11

page 7 of 11

republicpfkenyainthechiefmagistrate’scourtatnakurucivilsuitno1305of2021apndegespmbetweensawasawasuppliersl imitedplaintiffjudgmentcreditorandpetermuragurinjogu1stdefendantjudgmentdebtorerinpetenterpriselimited2nddef endantjudgmentdebtorruling 14.Taking into account that the Respondent is entitled to enjoy the fruits of his judgment, I am enjoined by the law to balance the competing interests of the parties herein. I have considered all the material placed before me by the Applicant, including the medical evidence of his ailments which have not been materially challenged by the respondent. The evidence demonstrates that the applicant has serious respiratory condition an acute pneumonia. 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 health. I have also noted the Applicant’s expression of his willingness to settle the decretal amount and further that committing him to civil jail would not necessarily guarantee the Respondent’s realization of the fruits of his judgment. 15.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. 16.In respect of prayer (4), the Applicant’s proposal to settle the balance of the decretal sum in monthly instalments of Kshs 50,000 was not accepted by the Respondent who has termed it as unreasonable. I have noted that in the case of Page 8 of 11

page 8 of 11

republicpfkenyainthechiefmagistrate’scourtatnakurucivilsuitno1305of2021apndegespmbetweensawasawasuppliersl imitedplaintiffjudgmentcreditorandpetermuragurinjogu1stdefendantjudgmentdebtorerinpetenterpriselimited2nddef endantjudgmentdebtorruling 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; 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. 17. It is common ground herein that the Applicant has paid only Kshs. 1000000/towards the settlement of the decretal sum herein. That amounts to roughly 10% of the decretal amount. The court had also earlier found that there is evidence Page 9 of 11

page 9 of 11

page 10 of 11

page 11 of 11