This application is brought by a Chamber Summons dated 4^th October, 2010, and taken out under Order IXB Rule 8; Order XXI Rule 22 (1) and (3) of the Civil Procedure Rules; and Section 3 and 3A of the Civil Procedure Act and all other enabling provisions of the law. By the application, the applicant seeks from the court the following orders –

e)                 That in any event the alleged consent is null and void as it sought to award the decree holder a prayer which was not sought in the suit.

Secondly, counsel argued that the prayers sought in the application have not been canvassed. He said that the application had 5 prayers and yet the only substantive one was prayer No. 3 which sought the setting aside of the consent order dated 24^th February, 2004. That prayer was also not adverse, and Mr Rimui submitted that the reason for not canvassing it was that it was being sought on a misrepresentation and lies to this court that the judgment debtor’s advocate had no authority yet, the applicant wrote to the bank directly making that proposal. Finally, counsel argued that the warrants of arrest were not unconstitutional as alleged and that they could only be illegal. However, he hastened to add that where a party defies a court order, the court has jurisdiction to issue the warrant of arrest. That aspect of it removes the matter from mere breach of contract especially where there is a judgment and decree. 

After considering the pleadings and the submissions of counsel, I note that prayers 3 and 4 were not canvassed and therefore I shall treat them as having been abandoned.  The main issue that remains to be determined in this matter is whether the warrant arrest issued in this matter is unconstitutional and violates the fundamental rights and freedom of the judgment debtor.   Todate the only literature I have come across on that issue is the ruling of Honourable Martha Koome, J., in RE ZIPPORAH WAMBUI MATHARA, Bankruptcy Cause No. 19 of 2010, and a stimulating review of that case by Mr D. Majanja, Advocate, in the Nairobi Law Monthly, Vol. 1, issue No. 3 of December, 2010 at page 94. Article 2 (6) of the Constitution of Kenya states that –

This covenant was ratified by Kenya on 1^st May, 1972, and has now become part of the laws of Kenya by virtue of Article 2 (6) of the Constitution.

          We have in this country a three-tier hierarchy of the law. At the apex is the Constitution of Kenya, which is the supreme law of the land, to which all other laws as subservient. Next in rank are Acts of Parliament, followed by subsidiary legislation at the bottom of the pile. The Civil Procedure Act is an Act of Parliament which provides for procedure in Civil Courts. Section 40 thereof makes provision for the arrest and detention of judgment- debtors.   It states as follows –

“A judgment-debtor may be arrested in execution of a decree at any hour and on any day, and shall as soon as practicable be brought before the Court, and his detention may be in any prison of the district in which the Court ordering the detention is situate …”

Since, however, Section 40 is at variance with the provisions of an International Convention which is part of the law of Kenya, it follows that we now have two conflicting laws, none of which is superior to the other. That conflict calls for a re-consideration of the probative value of Section 40 in the light of the new Constitutional dispensation. Only after a revaluation can it be determined whether to retain Section 40 in the Civil Procedure Act, or to do away with it altogether in favour of Article 11 of the Convention on Civil and Political Rights. If it doesn’t find favour in the current climate of Constitutional civil liberties, then Section 40 should be repealed as being unconstitutional.  In the spirit of the new Constitutional order, it is more likely than not that Kenyans would prefer a system in which there in no threat of civil jails.   Until a decision is taken at a proper forum, Section 40 of the Civil Procedure Act will continue to haunt the liberal freedoms enshrined in the Constitution until it is repealed or found to be unconstitutional at a proper forum. In my view, where a section of the law takes away a right which is conferred by another section, the former section should itself be taken away.  

As we have two conflicting provisions of the law in force, it is correct to say that both of them are applicable. In that event, if the applicant is jailed under Section 40, and that Section is later found to be out-dated in the current Constitutional order, the Applicant’s rights will have been trampled on. On the facts of this case, I find that the Judgment –debtor has some means of income. He is in the gainful employment of a leading insurance Company and has also a thriving business in the form of a school. Even if he is not committed to a civil jail, the judgment-creditor can have reasonable recourse to alternative modes of execution. 

 In order to avoid the possible violation of the Applicant’s rights in view of Article 11 of the International Convention, I therefore allow the application and grant a stay of the warrant of arrest issued against the judgment-debtor. The decree holder is, however, at liberty to explore and pursue alternative means of execution.

As this matter has been brought about by the judgment-debtor’s refusal to pay his debts when he has the means to do so, he will pay the costs of this application in any event.