Karanja & 12 others v Wells Fargo Limited (Cause 388, 379, 380, 381, 382, 383, 384, 385, 386, 387, 389, 390 & 535 of 2014 (Consolidated)) [2024] KEELRC 2582 (KLR)

The Court held that an account where all Advocates have equal control is what a stay order contemplates; a one-sided call deposit account does not qualify. Yet the Respondent's Advocates had sought documentation from the Claimants' Counsel which was never supplied, so the Claimants could not rely on their own lapse. Had due procedure been followed, the Claimants would have learnt the decretal sum had been secured.

Order 22 Rule 18(1) of the Civil Procedure Rules mandatorily requires a notice to show cause where execution is sought more than a year after the decree. Order 21 Rule 8(1) provides that a decree bears the date of delivery of the judgment, so the decree was dated 20th July 2018, not 23rd February 2024 as the Claimants contended. The absence of the notice rendered the execution unlawful.

A consolidated trial results in one common decree. Only the Bill of Costs for the 9 Claimants represented by Waiganjo Wachira & Co Advocates had been taxed; the costs of the remaining 4 were untaxed. Executing for only 9 Claimants therefore amounted to a partial decree executed without leave, contrary to Section 94 of the Civil Procedure Act.

The decretal sum ought to have been net of statutory deductions; warrants based on an erroneous tabulation cannot stand. The Respondent's HR Director and drivers deponed, uncontradicted by any affidavit from the Auctioneer, that no proclamation preceded attachment. These defects, together with the absence of notice to show cause and lack of leave for partial execution, made the entire execution exercise unlawful.