Mombasa-based lawyer Philemon Kiptum Koech’s KSh960,000 loan from an alleged unregistered “Shylock” ballooned into a KSh11.59 million claim, triggering a fierce court battle over exorbitant interest, enforcement, and his threatened arrest.
A Mombasa-based lawyer has lost a legal bid to stop the recovery of a debt now exceeding KSh11.5 million.
Justice Roselyne Aburili struck out Philemon Kiptum Koech’s constitutional petition on August 27, 2026.
The judge found that Koech was attempting to use constitutional litigation as a substitute for appeal.
The dispute began with a private loan of KSh960,000 advanced by Hadijah Hamisi.
Koech admitted to receiving the money but said he repaid KSh270,000.
The disagreement later escalated dramatically, producing a multimillion-shilling claim before the magistrates’ court.
Hamisi sued Koech at Milimani Magistrates’ Court in Civil Case E3815 of 2022.
Her claim relied upon a debt acknowledgement dated December 20, 2021.
That document placed the amount allegedly owed at KSh6.15 million, court records show.
Koech disputed the figure and challenged the legality of the underlying lending arrangement.
He accused Hamisi of operating an unregistered “shylock” business outside statutory regulation.
He also argued that exorbitant interest had transformed the original debt into an oppressive obligation.
The allegations became the foundation for his later constitutional challenge.
Debt Snowballs
The magistrates’ court eventually entered judgement for Hamisi on February 23, 2024.
Koech did not appeal that judgement within the prescribed statutory period, Justice Aburili noted.
Instead, Hamisi proceeded with efforts to enforce the judgement and recover the outstanding money.
By March 2025, the amount claimed had climbed to KSh11.59 million.
Koech appeared personally before the magistrate on March 11, 2025.
He sought time and indicated that he intended to make a payment proposal.
That attempt apparently did not resolve the dispute between the two parties.
On April 15, 2025, the magistrate issued warrants for Koech’s arrest.
The development prompted Koech to seek intervention from the High Court.
He filed his constitutional petition on April 28, 2025, challenging the lower court proceedings.
He argued that the magistrate had enforced an illegal and unconscionable lending arrangement.
He further alleged violations of his rights to dignity, equality, and protection under law.
Koech wanted the February 2024 judgement declared invalid and ultimately set aside.
He also sought orders preventing execution of the arrest warrant issued against him.
Hamisi strongly opposed the petition, describing it as an abuse of court process.
She argued that Koech was simply attempting to reopen an unchallenged judgement.
The judgement notes that Koech is an advocate with nearly 30 years of legal practice.
That fact strengthened Hamisi’s argument that he understood the proper appellate process.
Backdoor Appeal
Justice Aburili ultimately agreed with Hamisi’s central argument about the petition.
The judge found that Koech’s complaints were essentially ordinary civil and contractual disputes.
They concerned the loan agreement, interest calculations, alleged illegality, and execution procedures.
Those matters, the court held, already had established remedies under existing Kenyan law.
“The Petitioner chose not to lodge an appeal within the prescribed period,” Aburili ruled.
She said he instead attempted to “bypass the appellate mechanism” through constitutional proceedings.
That finding became the decisive point in the case.
The Civil Procedure Act generally provides 30 days for appealing subordinate court decisions.
A party may still seek permission to appeal late where sufficient cause is demonstrated.
Koech, however, had neither filed an appeal nor sought leave to appeal out of time.
Justice Aburili therefore described his petition as a “back-door appeal”.
She stressed that supervisory jurisdiction has a narrower purpose than ordinary appellate review.
It exists principally to ensure subordinate courts remain within their lawful jurisdiction.
It is usually unavailable for correcting ordinary legal or factual errors.
The judge found that the magistrate had acted within the jurisdiction granted by law.
Any alleged error involving the contract should therefore have been challenged through appeal.
The court consequently declined to reopen the merits of the original debt dispute.
Interest Battle
The case nevertheless highlights a larger and increasingly important issue surrounding private lending.
Koech argued that the interest imposed on his original borrowing had become unconscionable.
Although the High Court did not determine that question, Kenyan courts have examined similar disputes.
Recent decisions have treated the in-duplum principle as an important borrower protection.
The rule generally prevents interest from exceeding the principal owed when loans become non-performing.
In June 2025, the High Court described the rule as protecting borrowers against excessive interest accumulation.
That court also held that the principle could extend beyond conventional financial institutions.
Another 2025 decision similarly described the rule as serving an important public-interest function.
It emphasised protection against lenders allowing interest to reach astronomical levels.
Other recent decisions, however, have taken a narrower approach regarding certain non-bank lenders.
That emerging judicial debate makes the legal question particularly significant for private borrowers.
But none of those questions was determined in Koech’s constitutional petition.
Justice Aburili specifically avoided deciding whether Hamisi’s lending arrangement was illegal.
She also did not determine whether the interest demanded was unconscionable.
Instead, she held that those questions belonged within ordinary civil proceedings.
Petition Falls
The High Court ultimately struck out Koech’s petition dated April 28, 2025.
Justice Aburili nevertheless declined to make a conventional costs award against either party.
She directed both sides to bear their own costs of the constitutional proceedings.
The judge cited the substantial amount still claimed under the lower court decree.
She also noted that the judgement debt remained unsettled between the parties.
For Koech, the ruling leaves the February 2024 magistrates’ judgement standing.
For Hamisi, the decision removes the constitutional challenge mounted against enforcement.
The ruling does not, however, establish that every private lending arrangement is lawful.
Nor does it finally settle the disputed interest calculation between the parties.
Its central message is narrower but potentially important for future litigants.
A constitutional petition cannot ordinarily replace an available appellate remedy.
Where ordinary statutes provide an adequate route, constitutional intervention becomes difficult.
Justice Aburili invoked the doctrine of constitutional avoidance to reinforce that principle.
The doctrine requires courts to avoid constitutional questions where ordinary law can resolve disputes.
In Koech’s case, the judge found that civil procedure and contract law provided those routes.
The petition was therefore struck out, bringing the constitutional proceedings to an end.
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The dispute itself, however, remains rooted in the original civil judgement.
At its heart remains a KSh960,000 loan that evolved into a KSh11.59 million claim.
For now, the High Court has made clear where Koech’s next legal battle belongs.
It cannot be fought through a constitutional shortcut after an appeal was left unused.
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