Kisangau v Sila (Civil Case 96 of 2015) [2025] KEMC 18 (KLR)
The bottom line
#A Kenyan court cancelled an arrest warrant issued without proper execution procedure, but refused to reduce or reschedule the debt because a consent order remained binding.
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 court should stay execution of the decree herein
- 2.Whether the decree is defective and ought to be rectified
- 3.Whether the defendant/applicant should be allowed to defray the decretal sum by instalments
- 4.If so, whether an order for instalments of Ksh. 10,000/= per month is fair and reasonable
- 5.Who should bear the costs of this application
Key legal issues
#Whether the decree was defective for failure to discount Ksh. 100,000/= paid
The decree is not defective and requires no rectification; part payments are discounted at the execution stage
A decree is the formal expression of adjudication and a reflection of the judgment; it does not change with each part payment. If the applicant's logic were followed, full payment would extinguish the decree entirely. The court held there is no law requiring rectification of a money decree upon part payment, and the paid amount must be discounted when applying for execution.
Whether the applicant was bound by the consent order recorded by his erstwhile advocate
The consent order binds the applicant because advocates have ostensible authority to compromise suits absent a communicated limitation
Following Supreme Court Practice and M & E Consulting Engineers, an advocate has general authority to compromise a suit bona fide and absent express negative direction. A limitation of authority avails the client only if brought to the other side's notice. The applicant paid the first instalment, showing awareness of the consent terms, and did not seek variation until a warrant of arrest issued.
Whether the consent order should be set aside or varied
No; no fraud, collusion or misapprehension of material facts was shown, and the application was an unreasonable, unexplained delay
Applying Hirani v Kassam and Flora Wasike, a consent order has contractual effect and can only be set aside on grounds justifying setting aside a contract. None existed. The application came one year after adoption of the consent with no explanation for delay; the applicant was in default and his conduct disentitled him to equitable indulgence.
Whether the warrant of arrest issued on 8/7/2024 was regular
The warrant was issued in error; the decree holder should have made a formal application for execution and a notice to show cause should have issued
Under Order 22 rules 6, 18 and 31, execution requires an application, and where the decree is over one year old a notice to show cause must issue unless the court records reasons that notice would cause unreasonable delay or defeat the ends of justice. No application for execution was made, no reasons were recorded, and the consent did not expressly provide for arrest on default.
Whether the applicant should be allowed to pay by instalments of Ksh. 10,000/= per month
Declined; the applicant failed to show sufficient cause and was in default of the existing consent
Order 21 rule 12(2) and Order 22 rule 22(3) confer discretion, but sufficient cause must be shown. Citing Winfred Nyawira Maina, Jabali Alidina and Lavington Security, the court considered circumstances, conduct, bona fides and delay. The applicant paid only one irregular instalment, delayed one year, and gave no acceptable explanation; the discretion could not be exercised in favour of a defaulter.
Legal principles established
#- A consent order remains binding and can only be varied or set aside on grounds that would justify setting aside a contract, such as fraud, collusion, misapprehension or ignorance of material facts
- An advocate on record has implied/ostensible authority to compromise a suit on behalf of a client, and any limitation of that authority does not avail the client unless communicated to the other side
- A money decree is not defective by reason of part payment; payments are discounted in the application for execution, not by rectifying the decree
- Arrest and detention of a judgment debtor requires due process - a formal application for execution and a notice to show cause so the debtor is heard
- Where the decree is more than one year old, a fresh notice to show cause must issue before execution unless exceptions under Order 22 rule 18 apply
Court orders
#- 1.The firm of Gichuhi Kivindyo & Associates Advocates is granted leave to come on record for the Judgment debtor in place of the firm of Mutuku Mary & Company Advocates
- 2.The warrant of arrest issued on 8/7/2024 is vacated; a stay of execution of the decree is granted until the Decree holder files and serves a proper application for execution
- 3.The prayer for rectification of the decree is declined, but upon making the application for execution the Decree holder should take into account what has already been paid by the Judgment debtor
- 4.The prayer for payment of monthly instalments of Ksh. 10,000/= is declined
- 5.Each party shall bear its own costs of the application
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 and Order 21 rule 12(2) and Order 22 rules 6, 18, 22(3) and 31 of the Civil Procedure Rules
Relief refused
#Rectification of the decree to discount Ksh. 100,000/= paid
A money decree is not rendered defective by part payment; payments are discounted at the execution stage, not by altering the decree
Payment of the decretal sum in monthly instalments of Ksh. 10,000/=
The consent order remains in force, the applicant defaulted, delayed unreasonably and did not show sufficient cause
Costs
Each party shall bear its own costs of the application.
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 firm of Gichuhi Kivindyo & Associates Advocates is hereby granted leave to come on record for the Judgment debtor in place of the firm of Mutuku Mary & Company Advocates;
The warrant of arrest issued herein on 8/7/2024 is hereby vacated. Consequently, a stay of execution of the decree is granted until such time when the Decree holder will file and serve a proper application for execution;
The prayer for rectification of the decree is declined. However, upon making the application for execution of the decree, the Decree holder should take into account what has already been paid by the Judgment debtor;
The prayer for payment of monthly instalments of Ksh. 10,000/= is hereby declined
Given that the application has partially succeeded, each party shall bear its own costs of the application.
It is now settled law that a consent judgement or order has contractual efiect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out."
Issues in the judgment
#The judgment states the notice to show cause was issued on two different dates - 1/4/2022 and 18/4/2022
The judgment records a mention date of 12/2/2014, which is inconsistent with the chronology (judgment delivered 12/11/2015); it appears to be a typographical error for 2024
The suit case number is not disclosed anywhere in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kisangau v Sila (Civil Case 96 of 2015) [2025] KEMC 18 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/18/eng@2025-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.