Bowry & Compnay Advocates v Mutua (Miscellaneous Application E167 of 2024) [2025] KEHC 17821 (KLR) (20 November 2025) (Ruling) Neutral citation: [2025] KEHC 17821 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT BUNGOMA MISCELLANEOUS APPLICATION E167 OF 2024 MS SHARIFF, J NOVEMBER 20, 2025 BETWEEN BOWRY & COMPNAY ADVOCATES .................................................. APPLICANT AND DIDMUS WEKESA BARASA MUTUA ............................................ RESPONDENT RULING 1. Vide a notice of motion dated 24.10.25 the Applicant, Messrs Bowry & Company Advocates moved this court for the following orders: i. Spent ii. That the Honourable court be pleased to direct and/or the Officer Commanding Station (O.C.S) Hardy Police Station and/or any other Police Officer stationed where the Respondent’s proclaimed property are located to offer enough security to the Applicant’s Auctioneer in order to enforce the Warrants of Attachment and Warrants of Sale issued by this Honourable Court on 19th August 2025 and 6th October 2025, respectively. iii. That applicant’s Auctioneer, Charles M. Kamande T/A Chaka & Co. Auctioneers, be authorized to break open the gates of Respondent’s residential premises located in the Karen Hardy area, in Nairobi (exact location to be provided to the police by the said Auctioneer), in the presence of the police, and gain entry into the Respondent’s home for the purpose of seizing the proclaimed moveable properties in execution of the Warrants of Attachment and Warrants of Sale, should access be denied. iv. The Honourable court be pleased to grant leave to the Applicant to attach any other movable property of the Respondent that is not listed in the proclamation dated 16th September 2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17821/eng@2025-11-20 1
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v. The Honourable Court do extend the Warrants of Attachment and Warrants of Sale issued to the Auctioneers M/S Chuka & Co. Auctioneers on 19th August, 2025 and 6th October 2025, respectively for a period not exceeding 45 days to enable the said Auctioneers to finalize the execution process. vi. Such further Orders be made as the court may deem fit, just and expedient. 2. The application is supported by an affidavit of Charles Kamande sworn on 24.10.25. 3. The gist of the application is that the Respondent owes the Applicant a sum of Ksh. 494,300/- being a balance of a decretal sum of Ksh 994,300/- on account of taxed costs as per the Certificate of costs dated 13.3.2025. That due to failure by the Respondent to make full payment of the said taxed costs, the Applicant was compelled to undertake execution process through Mr Charles M. Kamande T/A Chaka & Co. Auctioneers who upon receipt of the warrants of attachment and sale, duly proclaimed the Respondents Chattels on 19th day of September 2025 but when the Auctioneers went to physically remove the attached chattels, he was denied entry into the Respondent’s residence hence the filing of this application. 4. This matter came for direction before Justice Rose Ougo on 4.11.2025, and she directed that the application be served within 3 days and a response be filed within 3 days of service and a mention date was slated on 12.11.2025 before this court for taking directions on how the application was to be canvassed. 5. On 12.11.2025 Counsel for the Applicant moved this court to expunge the Respondent’s Replying Affidavit sworn on 11.11.2025 on grounds that it had been filed outside the time frame granted by the court. On the part of the Respondent, one Miss Rotich who was holding brief for Mr Kiplagat arrogantly submitted that the lack of compliance with the directions of the court was premised on the fact that the Respondent had already settled the taxed costs and did not deem it necessary to conform with the set timelines. This court proceeded to expunge the Replying affidavit from the court record as Ms Rotich did not even crave for this court’s leave to have the Replying affidavit by her client be deemed as timeously filed. Analysis And Determination 6. I have duly considered the application herein, the affidavit in support thereof and the enclosures attached thereto and I do find that attachment had already been done by the act of issuing a proclamation. The auctioneer who issued the proclamation is entitled to payment of the Judgement sum plus his costs yet the respondent herein opted not to pay the Auctioneers costs which are payable by the respondent. 7. In light of the fact that the auctioneers costs of Ksh 88,933.40 are still unsettled as at the time of making this application. I will allow it and make the following orders: i. The Warrants of Attachment and Warrants of Sale issued to M/s Chaka & Co. Auctioneers on 19.8.2025 and 6th October 2025 respectively are hereby extended for a period of 45 days from the date hereof. ii. The Applicant’s Auctioneers M/S Charles M. Kamande T/A Chaka & Co. Auctioneers is hereby authorized to break open the gates of the Respondents residential premises located in Karen Hardy area Nairobi in the presence of the Officer Commanding Hardy Police Station and gain entry into the Respondent’s home for purpose of seizing the proclaimed movable properties in execution of the Warrants of Attachment and Warrants of Sale, should access be https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17821/eng@2025-11-20 2
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denied; the seizure should however be limited to such properties whose value will cater for the unpaid auctioneers costs. iii. The O.C.S Hardy Police Station to assist in execution of those orders. iv. The Applicant shall meet the costs of facilitation of the O.C. S Hardy police station. v. The Applicant is awarded costs of this application assessed at Ksh 15,000/- vi. This file is hereby Marked as closed. DELIVERED, SIGNED AND DATED AT BUNGOMA THIS 20TH DAY OF NOVEMBER, 2025. MWANAISHA S. SHARIFF JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17821/eng@2025-11-20 3
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