Mulama v Board of Management Ngara Girls School Nairobi & 2 others

Ndiga. The affiant avers that on 14th November 2018, the court entered judgment in the cause in favour of the Claimant against the 1st Respondent in which it awarded her (the Claimant) Ksh. 1,187,931.30. She contends that the Claimant took out warrants of attachment on 9 th December 2020. However, she contends that the 1 st Respondent paid the entire decretal sum before the warrants were executed. As such, she contends that the matter is fully settled. 3. The affiant avers that despite this, the proposed interested party has moved to enforce the aforesaid warrants. She contends that this is irregular since the warrants have expired and the decretal sum has, in any event, been fully paid. And hence the decision to seek the orders in the application. 4. The court record shows that the Claimant and proposed interested party were served with the application. However, they did not respond to it. As such, the motion is essentially not opposed. Analysis 5. The court notes that the auctioneer (proposed interested party) was merely seeking to execute warrants which were issued to him by the court. This, of itself, does not warrant his joinder as a party in the proceedings. 6. If the auctioneer has acted in excess of the authority which was granted to him by the court to execute the decree, the Respondents can move the court to declare the process CAUSE NO. 1966 OF 2011 2

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irregular without seeking to make him a party to the cause. As such, the request to make the auctioneer an interested party in the cause is declined. 7. The court 1st Respondent contends that it has paid the Claimant the sum of Ksh. 1,187,931.30 which was the subject of the warrant of attachment dated 9 th December 2020. This position is confirmed by the auctioneer in his letter to the 1st Respondent dated 20th November 2025. 8. It appears from the aforesaid letter that what the auctioneer is trying to recover is his fees which he estimates at Ksh. 307,216.00. However, there is no indication that this amount was either agreed on by the parties or ascertained through taxation of the auctioneer’s bill of costs as required under rule 55 of the Auctioneer’s Rules. Absent this, the auctioneer cannot simply take out execution proceedings for the amount. 9. Further, the auctioneer appears to be riding on the warrants which the court issued on 9th December 2020 to recover his fees several years down the line without first having renewed the said warrants. This is irregular since the warrants were supposed to have been returned to court by 30th January 2021. 10. The requirement to return warrants of attachment, whether executed or not, within the timelines that are set out in the warrants is set out in Order 22 rule 21 of the Civil Procedure Rules which provides thus, ’’the officer entrusted with the CAUSE NO. 1966 OF 2011 3

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execution of the process shall endorse thereon the day on, and the manner in which it was executed, and, if the latest day specified in the process for the return thereof has been exceeded, the reason for the delay, or, if it was not executed, the reason why it was not executed, and shall return the process with such endorsement to the court.’’ As such, the auctioneer is not entitled to recover his fees based on the expired warrants. Determination 11. The upshot is that the court declines to join the auctioneer as an interested party in the cause. 12. However, it (the court) hereby declares that the warrants of attachment dated 9th December 2020 expired on 30th January 2021 and are thus null and void. 13. As such, attachment the by impugned the proclamation auctioneer in a and attempted bid to recover auctioneer’s costs, in so far as it is founded on the aforesaid warrants of attachment, is irregular. It is so declared. 14. Further, the court declares that the attempts by the auctioneer to recover his fees without first presenting his bill of costs for assessment by the court is irregular. Dated, signed and delivered on the 17th day of September, 2026 B. O. M. MANANI CAUSE NO. 1966 OF 2011 4

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JUDGE In the presence of: …………….for the Applicant …………….for the Respondent ORDER In light of the directions issued on 12 th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court. B. O. M MANANI CAUSE NO. 1966 OF 2011 5

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