Zakayo Misiani Bosire v Ena Investment Limited

3. The Decree Holder and Auctioneer were both served with the application and hearing notice on 15th September 2025 but filed no response nor attended the hearing. The motion therefore proceeded unopposed. Applicant’s Case 4. The Applicant avers that this Court delivered judgment on 03rd April 2025, awarding the Decree Holder KES. 1,242,372. Pursuant to that judgment, a decree, warrants of attachment and of sale were issued on 11th September 2025, and on the following day, the 02nd Respondent attached the Applicant’s motor vehicle KDK 057M. 5. It is contended that— i. No valid proclamation was ever served prior to attachment ii. The purported proclamation dated 22nd August 2025 was said to have been received by one Evans who is neither its employees nor authorised representatives iii. The attached vehicle, a PSV bus, earns approximately KES. 117,000 per day, and its detention causes substantial loss iv. The Applicant has drawn and filed copies of two cheques covering the decretal amount to demonstrate readiness to settle the decree. Issues for Determination 6. I have considered the application and the issues that arise for determination are:1. Whether the attachment was lawful 2. What is the effect of the annexed cheques 3. Whether stay of execution or further orders are necessary. Legality of the Attachment 7. 8. Rule 12 of the Auctioneers Rules (1997) prescribes the mandatory procedure for attachment of movables. An auctioneer must: a. Prepare a proclamation in Sale Form 2 listing and valuing each item b. Serve the judgment debtor with a seven-day written notice to redeem the goods c. Refrain from removing any goods until expiry of that grace period The purported proclamation dated 22nd August 2025 bears a signature attributed to one Evans. The Applicant categorically denies knowledge of that individual and avers that no such person is or was in its employment. No affidavit of service was filed by the Auctioneer to prove lawful service, nor was any evidence adduced to rebut the Applicant’s denial thereof. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18394/eng@2025-11-13 2

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9. In Hudson Kariuki Njiru t/a Vision Auctioneers v Kanyi [2024] KEHC 11847 (KLR), the Court emphasised that: “ Compliance with Rule 12 of the Auctioneers Rules is mandatory. A proclamation that is not duly served upon the judgment debtor renders any subsequent attachment a nullity, as the debtor is denied the statutory seven-day notice to redeem the goods.” 10. Guided by that authority, I find that there was no valid service of the proclamation upon the Applicant. The attachment of motor vehicle KDK 057M was therefore irregular and unlawful. Efiect of copies of cheques and Need for Stay 11. The Applicant annexed copies of two cheques dated 13th September 2025 and 13th October 2025 respectively, drawn in favour of the Decree Holder’s advocate on record. The record reveals that these cheques were issued prior to the filing of the present application. 12. The issuance of the cheques demonstrates bona fides and a genuine intention to satisfy the decree of the Court. As stated in Keshavji Jethabhai & Bros Ltd v Saleh Abdulla [1959] EA 260 (CA), the tender of payment, even before or during execution proceedings, is a material consideration in assessing the conduct and good faith of a judgment debtor. There being no evidence of dishonour, the Court is entitled to presume that the decretal amount has been duly settled. Need for Stay 13. In light of the foregoing, and there being no evidence from the Decree Holder disputing payment, the necessity for stay of execution is effectively overtaken by events. The object of stay is to preserve the subject matter pending satisfaction or appeal. Where the decretal sum has already been paid or is in the process of being settled, there remains no justification for stay or for further orders permitting payment by instalments. Disposition 1. The attachment of motor vehicle registration number KDK 057M by Senema Africa Auctioneers is declared irregular and unlawful for non-compliance with Rule 12 of the Auctioneers Rules. 2. Consequent upon that finding, the 2nd Respondent shall upon service of this order forthwith release motor vehicle KDK 057M to the Applicant 3. The prayer for stay of execution and payment by instalments is declined, the Court noting that the decretal sum appears to have been settled as demonstrated by the annexed cheques 4. Storage charges, if any, shall be borne by the 2nd Respondent, subject to taxation if disputed 5. Each party, including the auctioneer shall bear their own costs DELIVERED AT NYAMIRA THIS 13TH DAY OF NOVEMBER 2025 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18394/eng@2025-11-13 3

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For JD/Applicant - Mr. Ayora for Ayora Magati & Co.Advocates For DH/1st Respondent – N/A for HKW LAW Advocates For 2nd Respondent - N/A https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18394/eng@2025-11-13 4

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