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MagistrateDismissedNot stated in the judgment

Kioo (Suing as the Legal Representative of the Estate of Paul Muli Kamoja - Deceased) v Mwaniki & another (Civil Case E032 of 2021) [2025] KEMC 231 (KLR)

Magistrates' Court
16 September 2025
2,159 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan magistrate's court refused to halt execution of a money decree because the defendant could not prove that High Court conservatory orders actually covered his case.

What this practically means

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Executive summary

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The applicant, the 1st defendant in a suit in which judgment was delivered on 25/10/2021 and a decree issued on 24/7/2024, moved the court by application dated 18/3/2025 under Order 12 rule 7 and Order 9 rule 9 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act. He sought leave for the firm of Kitindio Musembi & Company Advocates to come on record in place of Kimondo Gachoka & Company Advocates, the lifting or setting aside of a warrant of arrest issued on 27/1/2025, and a stay of execution of the judgment, decree and consequential orders pending the hearing of Machakos High Court Petition No. E019 of 2024, in which he claimed to be among petitioners protected by conservatory orders restraining execution against policy holders of Directline Assurance Company Limited. The respondent opposed, arguing the warrant was lawfully issued, that the conservatory orders did not bar execution of a valid decree, that the applicant had not offered security or shown any nexus between the petition and the decree, and that the application was an abuse of process and a delaying tactic. The court allowed the change of advocates without objection, but found that the applicant had failed to prove he was a beneficiary of the conservatory orders: the exhibited order was incomplete, uncertified and internally inconsistent, and the schedule of claims it referenced was never annexed. The court further held that it lacked jurisdiction to stay execution pending an unrelated constitutional petition not arising from its own proceedings. The application was dismissed with costs to the applicant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 1st defendant/applicant has advanced sufficient grounds to warrant a stay of execution of the decree herein
  2. 2.Whether the court should stay the execution of the decree herein pending the hearing and determination of Machakos HC Petition No. E019 of 2024
  3. 3.What other orders should the court make with respect to the application
  4. 4.Who should bear the costs of this application

Key legal issues

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01

Whether a subordinate court can stay execution of its own decree pending the hearing of an unrelated constitutional petition in the High Court

Holding

It cannot; the court lacks jurisdiction because the petition does not arise from the decision or proceedings in that court, and any stay ought to be granted by the High Court hearing the petition.

Reasoning

The court reasoned that a stay of proceedings or execution arising from a constitutional petition is properly sought before the High Court seized of that petition. The applicant did not demonstrate any nexus between the decree proceedings and the petition, and the court declined to manufacture a connection through judicial craft. The applicant should instead have attended court on the notice to show cause and explained the position with evidence.

p. 4
02

Whether the applicant proved he was a beneficiary of the alleged conservatory orders

Holding

He did not; the orders exhibited were incomplete, uncertified, internally inconsistent, and the schedule of claims referred to in the order was not annexed.

Reasoning

The exhibited order was incomplete, missing a first page, with no indication of which judge made the orders, and contained chronological anomalies (orders allegedly made on 31/1/2024 on an application dated 23/9/2024; a second order referring to an application dated 13/12/2025). Without the schedule of claims showing this matter was covered, mere membership of MATCO Sacco could not establish entitlement to the benefit of the conservatory orders.

p. 4
03

Whether the application was governed by Order 42 rule 6 of the Civil Procedure Rules

Holding

It was not; that provision deals with stay of execution pending appeal, which was not the case here.

Reasoning

The court distinguished the application from a stay pending appeal, noting that Order 42 rule 6 specifically addresses stay of execution pending appeal. The applicant's application was instead grounded on the alleged High Court conservatory orders and Order 12 rule 7, Order 9 rule 9 and sections 1A, 1B and 3A of the Civil Procedure Act, and so the appellate-stay framework did not apply.

p. 4

Legal principles established

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  • A court cannot grant stay of execution of its decree pending determination of a constitutional petition that does not arise from its own decision or proceedings; such a stay belongs to the court hearing the petition.
  • A party seeking to benefit from conservatory orders must prove he is covered by them, including annexing any schedule of claims specifically affected; the court will not make assumptions or guesses.
  • Mere membership of a Sacco that is a petitioner in a constitutional petition is insufficient to halt execution of a decree in an unrelated suit.

Court orders

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  1. 1.The firm of Kitindio Musembi & Company Advocates allowed to come on record for the applicant
  2. 2.The application dated 18/3/2025 is devoid of merit and is hereby dismissed
  3. 3.Costs of this application shall be borne by the 1st defendant/applicant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

YS
Y.A ShikandaSenior Principal Magistrate
majority

Wrote the judgment

Jurisdiction invoked
Order 12 rule 7 and Order 9 rule 9 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act

Relief refused

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Leave for the firm of Kitindio Musembi & Company Advocates to come on record for the defendant

Not refused - the court noted there was no objection and allowed this prayer.

p. 3

Lifting and/or setting aside the warrant of arrest issued on 27/1/2025

The application failed because the applicant did not prove he was a beneficiary of the alleged High Court conservatory orders.

p. 4

Stay of execution of the judgment delivered on 25/10/2021 and the decree issued on 24/7/2024 pending the hearing and determination of Machakos Petition No. E019 of 2024

The court lacked jurisdiction to stay execution pending a constitutional petition which did not arise from these proceedings, and the applicant failed to establish the nexus between the proceedings and the petition.

p. 4

Costs

Costs of this application shall be borne by the 1st defendant/applicant.

Quotable passages

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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 application dated 18/3/2025 is devoid of merit and is hereby dismissed;
p. 5Final orders - dismissal of the application
Costs of this application shall be borne by the 1st defendant/applicant.
p. 5Final orders - costs
I do not think it would be proper for this court to grant a stay of execution pending hearing and determination of a constitutional petition. My view is that this court lacks jurisdiction to do so.
p. 4Jurisdiction to stay execution pending a constitutional petition
It is not enough for the applicant to show that he is a member of MATCO Sacco, a party to the alleged High court petition. The applicant ought to have shown that this matter was affected by the alleged conservatory orders made by the High court.
p. 4Burden of proving entitlement to conservatory orders

Issues in the judgment

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minor

The case title and case number of the suit are not stated anywhere in the judgment; only the application date (18/3/2025) and the referenced Machakos Petition No. E019 of 2024 are given.

minor

The prayers referred to as 'in the plaint' appear to be prayers in the application - an apparent drafting inconsistency in the judgment.

minor

The court noted internal inconsistencies in the dates of the orders relied on by the applicant.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kioo (Suing as the Legal Representative of the Estate of Paul Muli Kamoja - Deceased) v Mwaniki & another (Civil Case E032 of 2021) [2025] KEMC 231 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/231/eng@2025-09-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.