Kelvin Mwakaba and Bethuel Nguta vs Thomas Wandeto Kimbio
The bottom line
#The Environment and Land Court in Voi refused to stop arrest warrants against two judgment debtors, confirming email service was valid and courts can revisit execution orders.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Application for Stay of Execution of warrants of arrest and Setting Aside Ex-Parte Orders is Merited
- 2.Who Should Bear the Costs of the Application?
Key legal issues
#Whether the court is functus officio in respect of execution orders already made
No; the court retains jurisdiction to supervise and regulate its own execution process and to vary or set aside ex parte orders where sufficient cause is shown
The application is ancillary to execution of the decree. Under section 3A of the Civil Procedure Act and Order 22 of the Civil Procedure Rules, the court retains inherent power to supervise its execution process. Functus officio does not apply to interlocutory or execution orders which the law expressly or inherently permits the court to revisit.
Whether the appellants were duly served with the Notice to Show Cause
Yes; service by email to addresses previously used and not disputed was effective, so the ex parte proceedings of 7th July 2026 stand
The Affidavit of Service dated 13th June 2026 and email correspondence annexed as TWK-1 and TWK-2 show service through email addresses the appellants previously used. The appellants did not dispute ownership or use of those addresses, and their failure to attend while following the proceedings was not satisfactorily explained.
Whether the warrants of arrest ought to be stayed given the alleged risk to personal liberty
No; no compelling circumstances or sufficient cause were demonstrated, and the right to liberty had not been infringed since the applicants had not been arrested and committal safeguards had not been triggered
Stay of execution is discretionary under Order 22 rule 22. The decree remains valid and unsatisfied, and the respondent is entitled to pursue lawful execution. The applicants had not been arrested or brought to court, and the judgment creditor had not paid subsistence sums into court, so the liberty safeguards under Order 22 rules 33 and 34 had not yet been engaged.
Legal principles established
#- Functus officio does not bar a court from revisiting its own interlocutory or execution orders where the law permits intervention
- A warrant of arrest secures attendance only and does not amount to automatic committal; Order 22 rules 33 and 34 safeguards must be complied with before committal
Court orders
#- 1.The Notice of Motion dismissed with costs to the Respondents
- 2.Costs awarded to the Respondents pursuant to section 27 of the Civil Procedure Act, 2010
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent powers under Section 3A of the Civil Procedure Act, 2010 and Order 22 of the Civil Procedure Rules, 2010
Relief refused
#Stay of execution of warrants of arrest
No compelling circumstances or sufficient cause demonstrated; right to liberty not infringed as applicants not yet arrested and safeguards under Order 22 rules 33 and 34 not triggered
Setting aside ex-parte proceedings and orders of 7th July 2026
Appellants were served by email at addresses they used and did not dispute; their non-attendance was not satisfactorily explained
Costs
Dismissed with costs to the Respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
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.
I find no sufficient basis for staying the warrants of arrest or otherwise interfering with the execution process.
The Notice of motion dated 7.7.2026 is not merited hence dismissed with costs to the Respondents. It is ordered accordingly.
Issues in the judgment
#Court finds Order 22 rules 33 and 34 safeguards not complied with yet refuses to stay the warrants
Final orders refer to motion dated 7.7.2026 though the application is dated 16th July 2026
Judgment dated 2026 in a 2023 case; all proceedings dated 2026
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kelvin Mwakaba and Bethuel Nguta vs Thomas Wandeto Kimbio", Case Analysis (2026). ELCLA/E005/2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6074/eng@2026-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.