Javisapa Enterprises Limited v Neema Trust Company Limited

as Advocates, pending the resolution of the issue of costs. She further states that, pursuant to Section 22 of the Auctioneers Act and Rules 7 and 55 of the Auctioneers Rules, read together with the Fourth Schedule to the Auctioneers Rules, the Auctioneer’s fees and charges cannot exceed Kshs.2,000,000/ =. She contends that the Auctioneer has already received more than he is entitled to as fees. She also asserts that K.M Mburu & Associates has a binding fee agreement with the Applicant, under which the agreed total fees for the matter is Kshs.5,000,000/=, which has already been paid to the firm pursuant to Order 1 (ii) of the Court’s orders made on 11/12/2023. She concludes that there is therefore no justification for the continued preservation of Kshs.21,000,000/= in the Auctioneer’s account. 4. In response to the present application, the Respondent, K.M Mburu & Associates, filed Grounds of Opposition dated 14th February 2024, a Replying Affidavit sworn on 15th February 2024 by Mwangi Mburu and a further affidavit dated 20th June 2025. In the affidavit, Mr. Mburu opposed the application on the ground that the Court has already rendered a decision on the subject matter, and the present application effectively seeks to confer upon the Court appellate jurisdiction to entertain an appeal from its own decision. He contended that the application is therefore defective, as it invites the Court to stultify itself by making an order that cannot be enforced. He further stated that, as the Applicant’s former advocates, the Court has recognized and enforced the principle of general lien, which entitles advocates to retain all papers, monies, or other property of their client that came into their possession in the course of representation until all costs and charges due to the advocates are paid. Additionally, he opposed the application on the ground that there are other pending matters and the Respondent firm has already filed and served the Applicant with bills of costs in Milimani HCCOMMISC/E1006/2023, K.M Mburu v Javispa Enterprises Limited, and Machakos HCCMisc/242/2023, K.M Mburu v Javispa Enterprises Limited, which are pending determination. He concluded that the Applicant has approached the Court with unclean hands and is therefore not entitled to the Court’s discretion. 5. In response to the present application, the Auctioneer/Respondent filed a Replying Affidavit sworn on 16th February 2024, in which he opposed the application on several grounds. He averred that the parties recorded a consent on 11th December 2023, wherein a sum of Kshs.21,000,000/= was to be preserved in the Auctioneer’s client account as security for costs payable to the Auctioneer as well as to K.M Mburu & Associates, pending the resolution of the issue of costs. He further stated that he has filed a civil suit Milimani CMCC No. E183 of 2024 seeking enforcement of his auctioneer’s fees in accordance with an agreement entered into between the Applicant and the Auctioneer, dated 22nd September 2023. He contended that the present application amounts to an abuse of the court process, as the issues it raises can only be resolved after determination of the fees payable to the Auctioneer and K.M Mburu & Associates in line with Clause (iii) (b) of the consent order. He also noted that the funds were not deposited in an interest-earning account, and therefore the Applicant’s claim for interest is unfounded and without basis. 6. The Applicant thereafter filed a supplementary affidavit sworn on 12th March 2024 in response to the Affidavits filed by the Respondent firm of K.M Mburu & Associates and the Auctioneer. She stated that it is highly preposterous for the firm of advocates to contend that the Court is seized of the issue of costs between the Applicant and K.M Mburu & Associates in other cases, when the formal order extracted is completely silent on the contentions advanced by Mr. Mburu. She further stated that she has not received any notices for payment of fees prior to taxation from Mr. Mburu, and that the taxation applications referred to are premature. She deponed that K.M Mburu & Associates is not a party to this suit and, to the best of her knowledge, they are still representing the Applicant, as no application to cease acting has been served upon the Applicant. She asserted that a plain reading of the Court order of 11th December 2023 makes it clear that the costs referred to therein relate solely to https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11097/eng@2025-07-22 2

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this matter. She further averred that, as a matter of general practice, no substantial orders can be issued against an interested party who is not properly on record, and therefore the Court cannot proceed in the manner proposed by Mr. Mburu. 7. With regard to the Auctioneer’s Replying Affidavit, the Applicant stated that the Auctioneer has not served it with any Bill of Costs in respect of this matter, as required under the procedural rules and the Auctioneers Act. She further asserted that even if a Bill of Costs had been filed, there is no order staying proceedings in this matter pending the hearing of the suit filed by the Auctioneer in the lower court. The Applicant contended that the Auctioneer obtained the authority to sell by attachment through orders of this Honourable Court, and therefore only this Court is competent to address issues arising from the sale by public auction. The deponent further stated that the Applicant has prosecuted this matter for over ten years and, in the interest of justice, should now be allowed to enjoy the fruits of its judgment. 8. She also argued that the alleged agreement relied upon by the Auctioneer to assert his claim cannot be enforced against the Applicant because it constitutes privileged and inadmissible communication, and that the quantum of the Auctioneer’s fees cannot be determined through an agreement in which the judgment debtor was not a party. She explained that, on behalf of the Applicant, she signed only one original letter, which she handed to Mr. Mburu. Mr. Mburu, in turn, gave the letter to the firm of Omwanza Ombati & Company Advocates, who have since confirmed that they never forwarded the letter to the Auctioneer. She therefore concluded that Mr. Mburu must have given the letter to the Auctioneer against her express instructions. She clarified that the letter was addressed to Omwanza Ombati & Company Advocates, who were then acting for the Applicant in Machakos HCCC No. 9 of 2023, which has since been withdrawn, and in which the Auctioneer was awarded costs of Kshs.100,000/=. She added that, by a subsequent letter dated 30th September 2023, addressed to Omwanza Ombati & Company Advocates, she expressly instructed them to disregard the earlier letter dated 22nd September 2023. Finally, she asserted that the Auctioneer and the Respondent firm of K.M Mburu & Associates have colluded to prevent the Applicant from obtaining the balance of the decretal sum deposited with the Auctioneer. 9. The Court directed the parties to file written submissions. The Applicant filed its submissions dated 9th April 2024; the Auctioneer filed submissions dated 15th May 2024; and the Respondent firm filed its submissions dated 29th May 2024. On 17th July 2025 the parties orally highlighted their respective submissions. Applicant’s Submissions 10. The Applicant began its submissions with a brief introduction and background to the application. In its background, the Applicant stated that judgment was entered in its favour for the sum of Kshs.58,313,091/= together with costs and interest. The judgment debtor failed to settle the decretal sum, compelling the Applicant to employ mechanisms to recover the debt. Consequently, it obtained orders to attach and sell the judgment debtor’s property known as Mavoko Block 3/2104 through public auction. Warrants of attachment and sale were issued to Westminister Merchants Auctioneers, who, according to the Applicant, were nominated by the Interested Party/Respondent, being their former advocates, to conduct the sale. The Applicant submitted that the Auctioneer sold the property to Usercare Limited for Kshs.100,000,000/=, retaining a deposit of Kshs.25,000,000/=, while the advocate retained the balance of Kshs.75,000,000/=. The Applicant further stated that several suits were filed challenging the auction but were later withdrawn by the parties following the consent recorded in open court on 11th December 2023. The Applicant submitted that neither the firm of K.M https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11097/eng@2025-07-22 3

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Mburu & Associates Advocates nor the Auctioneer has filed any Bill of Costs for taxation in respect of their fees in this matter, as required by law. 11. The Applicant identified two issues for determination in its submissions, namely: whether the Court can delay the release of the decretal sum on account of other pending matters, and whether the advocate is a necessary party to this matter. On the first issue, the Applicant submitted that neither the advocate nor the auctioneer has presented a Bill of Costs for taxation in this matter. Citing Section 34 of the Civil Procedure Act and Order 22 Rule 56(2) of the Civil Procedure Rules, the Applicant argued that the auctioneer and the advocate were merely its representatives during the execution proceedings, and therefore any questions arising regarding their fees can only be addressed in this suit and not elsewhere. The Applicant emphasized that the role of determining the fees of court officers is one that cannot be delegated to other courts, as suggested by the advocate and the auctioneer. 12. The Applicant also referred to the case of Robert Alai Onyango v Cabinet Secretary in Charge of Health & 7 others [2017] eKLR, submitting that the Court has no supervisory jurisdiction to stay this matter on account of other matters pending before superior courts. The Applicant further submitted that the advocate only becomes a party to the proceeds of sale after judgment, and that the advocate has several avenues for realizing his costs, avenues which he has not pursued, including the procedure under Section 52 of the Advocates Act. The Applicant contended that it cannot indefinitely wait for the advocate to invoke the legally prescribed mechanisms. 13. On the second issue, the Applicant while relying on Order 1 of the Civil Procedure Rules and Tang Gas Distributors Limited v Said & Others [2014] EA 448, submitted that the issue of parties to a suit arises before judgment is delivered, and not after. It argued that the consent order did not make the auctioneer or advocate parties to the suit, but rather recognized them as representatives or agents of the Applicant. The Applicant contended that the stake of the auctioneer and advocate, as professionals, is limited to their costs, which in itself cannot restrain a successful litigant from enjoying the fruits of its judgment. In citing Republic v Lucas M. Maitha, Chairman, Betting Control and Licensing Board & 4 others ex parte Interactive Gaming and Lotteries Limited, the Applicant submitted that the claim of a general lien over the judgment sum by the advocate, purportedly exercised through the auctioneer, is misplaced. The Applicant argued that a lien is a possessory right, exercisable only by the person in possession. The Applicant further submitted that the advocate has not made any application under Order 52 of the Civil Procedure Rules for determination of any alleged lien in these proceedings. It was the Applicant’s position that the advocate was fully paid for his services in accordance with a fee agreement, which has not been challenged or set aside under Section 45 or 46 of the Advocates Act. Finally, the Applicant argued that to extend the advocate’s lien to other matters unrelated to the instructions in this matter would amount to an unreasonable and whimsical interpretation of the advocate’s privilege. 14. The Applicant concluded its submissions by urging the court to allow the application with costs. 1st Interested Party/Respondent’s submissions 15. The 1st Interested Party commenced his submissions by providing a brief background to the matter. He noted that, on 6th February 2024, this Court affirmed the contents of the consent order of 11th December 2023 by stating: “based on the consent order dated 11th December 2023, both Mr. Mburu and the Auctioneer have an interest in the Kshs 21,000,000/= held by the Auctioneer…”. He submitted that his interest under the consent order has neither been reviewed, discharged, nor vacated so as to open the door for the instant application. He therefore contended that the prayers sought by the Applicant are, for all practical purposes, unenforceable because the Applicant ought first to seek a review or discharge of the consent orders. In support of his position, and relying on Eric V. J. Makokha https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11097/eng@2025-07-22 4

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& 4 others v Lawrence Sagini & 2 others, Civil Application No. 20 of 1994 (12/94 UR), the 1st Interested Party submitted that the application is indolent and that granting the prayers sought would amount to a futile exercise, given the existing orders preserving the funds. 16. The 1st Interested Party placed reliance on the case of In the Matter of the Interim Independent Electoral Commission [2011] eKLR, submitting that the Court had already pronounced itself on the existence and propriety of the consent order through its ruling issued on 6th February 2024. Having affirmed its position on the preservation of the funds in question, the 1st Interested Party contended that the Court is now bereft of jurisdiction to entertain the present application, as doing so would effectively amount to hearing an appeal from its own decision. The 1st Interested Party further submitted that the Applicant has neither argued nor alleged that the consent order was procured through coercion, misrepresentation, or fraud so as to warrant its impeachment. While citing the Court of Appeal decision in Civil Appeal No. E047 of 2021, Guzzini & Another v Tinga & 7 Others, the 1st Interested Party argued that the propriety of the consent order has not been impeached, and the consent and subsequent orders unequivocally preserved the funds pending the resolution of the issue of costs as between the Interested Parties and the Applicant. 17. In conclusion, the 1st Interested Party urged the Court to dismiss the application with costs. Auctioneers’ submissions 18. The Auctioneer began his submissions by asserting that the parties had agreed on the issue of costs payable to him, and that he consequently filed a suit to enforce his fees in line with the agreement entered into between the Applicant and the Auctioneer, as evidenced by the letter dated 22nd September 2023. That suit is still pending determination. The Auctioneer submitted that the suit he filed seeks a declaration by the Court of the rights and obligations of the parties under the said agreement. He referred to Rule 55 of the Auctioneers Rules to argue that an auctioneer may charge fees based on an agreement or contract entered into between the auctioneer and a party. He further submitted that it is therefore not mandatory for an auctioneer to file a Bill of Costs for taxation, particularly where an agreement on fees exists. 19. In support of his position, the Auctioneer cited Paul Kiplagat v John Koech [2021] eKLR, Flora Wasike v Destimo Wamboko (1982-1988) KAR 62, Brooke Bond Liebig v Mallya (1975) EA 266, Jirani v Kassam (1952) 19 EACA 131, and Kenya Commercial Bank Limited v Specialized Engineering Company Limited (1982) KLR. He submitted that no sufficient grounds have been advanced by the Applicant to warrant the orders sought, particularly those that would amount to setting aside a consent judgment. 20. In conclusion, counsel for the Auctioneer urged the Court to dismiss the application dated 5th February 2024 with costs. 21. On 19th June 2025 the parties were granted leave for the Respondent firm of K.M Mburu & Associates to file a further affidavit, and for the Applicant to file a rejoinder. Pursuant to that leave, Mwangi Mburu, on behalf of the Respondent firm, swore a Further Affidavit on 20th June 2025. In it, he stated that, during the pendency of the present application, the Applicant had, on separate occasions, moved the Court for release of the subject funds. However, the Court consistently reaffirmed that it could not unilaterally vary the terms of the consent orders of 11th December 2023. He referred specifically to the Applicant’s earlier applications dated 23rd September 2024 and 10th December 2024, as well as the Court’s order issued on 11th December 2023. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11097/eng@2025-07-22 5

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22. He further deponed that the issue of costs between the Applicant and the advocates remains unresolved, with several Bills of Costs and references pending before various courts: HCCOMMISC/ E1006/2023, K.M Mburu v Javispa Enterprises Limited, scheduled for ruling on 17th July 2025; ELCMisc/E040/2024, Kenneth Mwangi Mburu & Associates v Javispa Enterprises Limited, scheduled for ruling on 25th November 2025; and HCCOMMISC/E008/2024, Kenneth Mwangi Mburu v Javispa Enterprises Limited, which is pending before the Court of Appeal. 23. He also noted that the Applicant in her Replying Affidavit dated 29th May 2025 in HCCOMMISC/ E1006/2023, acknowledged that the subject funds were being held as security for costs and that the issues between the advocates and the Applicant regarding fees were yet to be fully and finally determined. He concluded that, in light of these pending matters, the question of disbursement of the subject funds should be resolved only after determination of the outstanding disputes between the parties. 24. In rejoinder to the Respondent’s Further Affidavit, the Applicant filed a Further Supplementary Affidavit sworn on 21st June 2025 by its director. In it, she stated that the applications dated 23th September 2024 and 10th December 2024 had been withdrawn and were therefore never subjected to evidentiary scrutiny by the Court. She further asserted that the reference to costs in the consent order of 11th December 2023 pertained solely to the advocate’s costs in this matter and not to any other matter. She averred that counsel had failed to tax his costs in this matter, and that the consent order did not contemplate or cover costs in other matters handled by the advocate for the Applicant. Accordingly, she argued, the decretal sum in this matter cannot properly be the subject of proceedings in other courts. She further averred that the issue of costs in this matter was resolved by payment of Kshs.5,000,000/ = to the advocate after execution of the consent, and that no further Bill of Costs has been filed in this matter by the advocate. She stated that the advocate has no lien over the funds preserved by the Court’s orders since his fees have already been settled. She maintained that, having failed to file a Bill of Costs in this matter, counsel’s claim for costs in unrelated matters is misplaced. Finally, she contended that counsel has not demonstrated how his fees in other matters relate to the fees in this matter, or how the decretal sum herein is connected to any fees allegedly owed in other proceedings. Analysis and Determination 25. Having considered the application, the supporting and replying affidavits, and the detailed submissions by all parties, this Court identifies the following issues for determination: what is the proper interpretation and effect of the consent order of 11th December 2023, and whether the application is merited. 26. The core of this application hinges on the interpretation and scope of the Consent Order dated 11th December 2023. The terms of the consent were as follows; “ By consent of the parties the sale of LR No. Mavoko Town Block 3/2014 be confirmed as absolute subject to the following; i. the sum of Kshs.70,000,000/- held in the account of K.M Mburu and Associates be released to the decree holder account No. Javisper Enterprise Limited, Gulf African Bank Eastleigh Account No 0300126201. ii. the remaining funds remaining in the account of K.M Mburu & Associates be retained by the said firm as part of their legal fees. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11097/eng@2025-07-22 6

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iii. the funds held by the Auctioneers Westminister Merchant Auctioneers in the sum of kshs.25,000,000/- be utilised as follows (a) kshs.4,000,000/- be released to the auctioneer as part of their fees (b) kshs.21,000,000/- to be preserved in the said accounts as security for costs for the auctioneer Westminister Merchants and K.M Mburu and associates pending resolution on the issue of costs iv. the orders made in Machakos (OS) E13 of 2023 dated 8th November 2023 are hereby lifted and discharged to aid compliance with this consent orders v. upon confirmation of the above the Deputy Registrar to execute all necessary documents to effect transfer of LR No Mavoko Town Block 3/2014 to wisecare limited vi. the application dated 15th January 2023 by the decree holder (Amend Notice of Motion) be allowed in terms of prayer 2. 27. Of interest to this matter is the consent No (iii) (b) which was to the effect that Kshs.21,000,000/- to be preserved in the said accounts as security for costs for the auctioneer Westminister Merchants and K.M Mburu and associates pending resolution on the issue of costs. 28. Thus, this court has a duty to ascertain the precise meaning and scope of the Order (iii) (b) of the consent order. The Applicant consistently argued for a narrow interpretation, asserting that this referred exclusively to costs arising from this specific suit (Machakos HCC No. 5 of 2018). Conversely, the Respondents advocated for a broader interpretation, contending that the phrase encompassed outstanding fees and pending litigation in other matters, thereby justifying the continued preservation of the funds as general security. 29. It is a well settled principle that a consent order has the same effect as a contract between the parties and, once adopted as an order of the Court, binds them just like any other judgment or order of the Court. In the case of James Muchori Maina vs Kenya Power & Lighting Company Ltd [2005] eKLR the court, citing with approval the case of Flora Wasike (supra) observed as follows: “ Consent is in the form of a contract. It binds the parties. Since the time that consent was entered in court in 1999, it has not been challenged, nor has any of the parties applied to set it aside. The legal validity of a consent and principles on which it can be set aside were considered by the Court of Appeal in the case of Kenya Commercial Bank Ltd vs Benjoh Amalgamated Ltd. – Nairobi Civil Appeal No. 276 of 1997, wherein the Court of Appeal applied the reasoning in the case of Flora Wasike –vs- Destimo Wamboke (1988) 1 KAR 625 at page 626 where Hancox JA. (as he then was) stated‘It is now settled law that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out’”. 30. From the foregoing, it is clear that once a party accedes to consent and the consent is made an order of the court, the law dictates that a party must comply with the terms therein unless he can establish grounds to have the consent judgment set aside on grounds that would allow for a contract to be vitiated. None of the parties have moved the court to set aside the consent order and it therefore remains valid. The consent having been filed in this court, it remains upon the Court to resolve the conditions contained in the consent to its satisfaction as to allow the prayer for release as sought. This, in the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11097/eng@2025-07-22 7

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Court’s view does not amount to reviewing or sitting on appeal against the Court’s orders. I emphasize that it cannot have been contemplated that the security for costs would be held in perpetuity. 31. As the parties seem to differ on the terms and effect of the said consent order, a strict interpretation of the party’s intention is paramount. In doing so, this Court finds that no clause in the said order extends the preservation of these funds to resolve costs in other unrelated suits involving the parties. If the consent order had intended to secure costs for all matters, it would have been drafted with broader, more explicit language. Therefore, this Court interprets the phrase "pending the resolution of the issue of costs" to refer specifically to costs arising from this matter Machakos HCC No. 5 of 2018. 32. The Applicant asserted that Kshs.5,000,000/= had already been paid for the Interested Party's services in this matter in accordance with an established fee agreement, which has not been challenged, set aside, or varied under Sections 45 or 46 of the Advocates Act. It is of note that the said payment was made after the consent had already been adopted. This, in my view, connotes that the payment was made in compliance with the terms of the consent. Importantly, the Applicant further stated that "no further Bill of Costs has been filed in this matter by the advocate". The burden was on the Interested Party to demonstrate a valid, outstanding claim for costs in this specific suit that justified the continued retention of the funds. 33. The Respondents cited several pending Bills of Costs and civil suits in various courts, involving the Applicant and the Respondents, as justification for the continued preservation of the Kshs.21,000,000/=. However, as determined above, this Court interprets the consent order's reference to costs as limited to this specific matter. The Respondents have not demonstrated any surviving entitlement to retain the funds beyond what the order anticipated. I find that the Interested Party's reliance on pending Bills of Costs in other courts does not directly address the condition for release of funds in this specific consent order as interpreted by this Court. At any rate, the Bills are not before this Court for determination and/or interrogation. 34. Regarding the advocate's general lien, this Court notes the Applicant's argument that a lien is a possessory right, and the Interested Party was not in possession of the Kshs.21,000,000/= (the Auctioneer held it). Furthermore, no application under Order 52 of the Civil Procedure Rules for determination of the alleged lien was made in these proceedings. While a general lien is a recognized principle, its application must be justifiable and directly linked to the funds being held. Given the Applicant's assertion of payment for services in this specific case and the absence of a Bill of Costs for this case, the claim for a general lien over these funds for other, unrelated matters becomes legally untenable without explicit contractual or court order support. The Court further notes that the firm of Advocates is engaged in taxation proceedings elsewhere as against the Applicant and does not wish to comment any further on matters before other courts of competent jurisdiction to address matters before them. 35. The Applicant cited statutory caps under Section 22 of the Auctioneers Act and Rules 7 and 55 of the Auctioneers Rules, read with the Fourth Schedule, asserting that the Auctioneer's fees cannot exceed Kshs.2,000,000/= and that he had already received more than his entitlement. The Applicant also contended that the Auctioneer had not served a Bill of Costs in this matter. On its part, the Auctioneer relied on an alleged private fee agreement dated 22nd September 2023 and argued that Rule 55 of the Auctioneers Rules allows for fees based on agreement, making taxation not mandatory. However, the Applicant strongly challenged the validity and enforceability of this agreement, characterizing it as privileged and inadmissible communication, and alleging that it was given to the Auctioneer against her express instructions. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11097/eng@2025-07-22 8

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36. This Court finds that while Rule 55 allows for agreements, such agreements must be valid, undisputed, and properly before the Court. The Applicant's robust challenge to the agreement's validity, coupled with the assertion of statutory limits and the High Court's primary jurisdiction over its own execution process, leads this Court to apply itself on its issue, with the requisite caution that the substantive dispute as to the validity and effect of the fee agreement is pending elsewhere. In the premises, the Court asserts that in the absence of a clear, undisputed, and enforceable agreement, the statutory framework for auctioneer's fees, which typically requires taxation, the Auctioneer’s argument would prevail. Accordingly, the Auctioneer has not demonstrated, to the Court’s satisfaction, a clear, quantifiable, and procedurally compliant reason for retaining the funds based on a valid claim for costs in this specific matter. 37. The Interested Party argued that this Court is functus officio, having already pronounced itself on the consent order on 6th February 2024. However, a court is not functus officio if its previous order explicitly leaves a matter for future resolution. The consent order itself was conditional as it contained the phrase "pending the resolution of the issue of costs". As earlier stated, this implies ongoing jurisdiction for the Court to determine when that condition has been met. The applicant has now moved the court, as I understand, arguing that the condition has been met, a position that is contested by the Respondents. 38. In the end, to allow funds from one specific case to be held indefinitely due to disputes in unrelated cases would be misplaced and could be seen as an abuse of process. The Applicant's averment that "the consent order did not contemplate or cover costs in other matters handled by the advocate for the Applicant" and that "the decretal sum in this matter cannot properly be the subject of proceedings in other courts" is persuasive. This Court finds that pending Bills of Costs or suits in other courts, if unrelated to the specific costs of this matter as defined by the consent order, cannot justify the indefinite retention of the Kshs 21,000,000/=. 39. This Court is guided by the fundamental principle that a successful litigant should be allowed to enjoy the fruits of their judgment, especially after a protracted period of litigation, which in this case spans over ten years. The Respondents have failed to demonstrate a clear, and quantifiable reason for retaining the funds within the narrow scope of the consent order as interpreted by this Court. The claims for costs by the Interested Party and the Auctioneer, while potentially legitimate in other forums, have not been substantiated as outstanding and properly claimed within the context of this specific suit and the conditions of the consent order. 40. Further, there exists no order to prevent the release of the said funds as sought and such release does not bar any of the respondents from pursuing costs against the applicant. Moreover, none of the respondents gave any indication as to their anticipated final costs. With the undisputed payments already made to the respondents, I see no reason to still hold the funds any further on account of security for costs particularly when the funds are not being held in any interest earning account. 41. Therefore, this Court finds merit in the Applicant's Notice of Motion dated 5th February 2024 and makes the following orders; 1. That the Kshs.21,000,000/= currently held by Henry Kuria Karara t/a M/S Westminister Merchant Auctioneers, which is the subject of the Consent Order (iii) (b) of the orders of this Court made on 11th December 2023, be forthwith released to the Plaintiff/Applicant. 2. The claim for interest at twelve percent per annum with effect from 2nd August 2023 is hereby denied, as the funds were not deposited in an interest-earning account. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11097/eng@2025-07-22 9

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3. Each Party shall bear its costs of the application. It is so ordered. DATED, SIGNED AND DELIVERED AT MACHAKOS THIS DAY 22ND DAY OF JULY, 2025. RHODA RUTTO JUDGE In the presence of; .......................Plaintiff ........................Respondent Selina Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11097/eng@2025-07-22 10

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