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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 680 (KLR)

Plaintiff/Applicant v Defendant/Respondent

Environment and Land Court (inferred from the single judge sitting at Nyeri; the judgment does not name the court)
20 February 2025
LKL. G. Kimani
2,425 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff/Applicant moved the court by Notice of Motion dated 12th February 2024 seeking, principally, a stay or lifting of warrants of attachment dated 20th December 2023, an order restraining the Defendant/Respondent from attaching property at his homestead, leave to respond to a Notice to Show Cause dated 30th June 2023, and costs in the cause. The background was that the suit had been dismissed with costs to the 1st Defendant; a bill of costs was taxed at Kshs. 390,080.00 per a Certificate of Taxation dated 7th June 2023. The Applicant's attempt to set aside the taxation, filed 5th June 2023, was dismissed for want of prosecution on 27th September 2023. The 1st Defendant filed two applications for execution of the 'Decree' (9th June 2023 and 18th December 2023) and obtained warrants of attachment on 20th December 2023, executed by visits to the Applicant's homestead on 26th January and 9th February 2024. The court held that no decree had ever been extracted; a certificate of costs is not an executable instrument, and execution under Order 22 Rule 6 presupposes a decree. The execution and warrants were therefore irregular, null and void. The warrants were lifted and attachment restrained, but only on the strength of those warrants, with liberty to execute afresh upon obtaining a decree. Leave to respond to the Notice to Show Cause was refused as the notice flowed from a faulty execution. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether a certificate of costs can found execution

Holding

No; the certificate of costs is only for ascertainment of payable costs and cannot support warrants of attachment; execution was irregular, null and void

Reasoning

The court found no decree was extracted by any party despite both execution applications being titled 'Application for the execution of Decree'. Relying on section 38 of the Civil Procedure Act and Order 22 Rule 6 of the Civil Procedure Rules, the court held that execution applications under those provisions presuppose a decree. A certificate of costs merely ascertains the payable costs and does not underpin execution; warrants issued without a decree are a nullity.

p. 5
02

Whether warrants of attachment dated 20th December 2023 should be lifted

Holding

Yes, the warrants were lifted, with liberty to the decree holder to execute afresh after obtaining a decree

Reasoning

Having found the execution process null and void for want of a decree, the court granted prayer 2 lifting the warrants and prayer 3 restraining attachment, but limited the restraint to attachment on the strength of the impugned warrants, permitting fresh execution once a decree is lawfully obtained.

p. 5

Legal principles established

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  • A certificate of costs is not an executable instrument; execution for costs requires a decree extracted on record
  • An application for execution under Order 22 Rule 6 of the Civil Procedure Rules presupposes the existence of a decree

Court orders

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  1. 1.The Warrants of attachment dated 20th December 2023 are lifted with liberty to the 1st Defendant to apply for execution following the procedure set out in law
  2. 2.An order restraining the 1st Defendant/Respondent by himself, their officers, agents and/or anyone acting on their behalf from attaching the Plaintiff's property on the strength of the warrants of attachment dated 20th December 2023
  3. 3.Prayer 4 of the application (leave to respond to the Notice to Show Cause dated 30th June 2023) is disallowed
  4. 4.Each party shall bear their costs of the application
Jurisdiction invoked
Original supervisory jurisdiction over execution within the suit; application brought under Order 51 Rule 1, Order 22 and Order 10 Rule 11 of the Civil Procedure Rules

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, "Plaintiff/Applicant v Defendant/Respondent", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/680/eng@2025-02-20

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