Kenya Houses Investments Limited v Jonathan Kiplimo

proclamation belongs to a third party, namely Vincent Kiplangat t/a Juakali Solutions, and was held by the applicant under a lease or licence arrangement. 4. The applicant further disputes the auctioneer's charges and contends that unless execution is immediately stayed and the attached property preserved, the auctioneer may proceed to advertise and sell the motor vehicle and other goods seized before the legality of the execution process is determined. 5. The application is opposed by the decree-holder through the replying affidavit sworn by Jonathan Kiplimo on 14th August, 2026. He deposes that on 24th April, 2026, this Court delivered judgment in his favour in the sum of Kshs. 259,515.07/-, inclusive of costs and interest. Following issuance of the decree, he instructed Mallard Auctioneers to execute the decree after several attempts to secure payment from the applicant proved unsuccessful. 6. It is deposed that warrants of attachment of movable property in execution of the decree were issued on 18th June, 2026 and that on 29th June, 2026, the auctioneer proceeded to the applicant's premises, where motor vehicle registration number KDE 271Z together with office furniture were proclaimed. The applicant was issued with the mandatory seven-day proclamation notice but declined to sign the same. He further deponed that after expiry of the seven-day period, and in the absence of payment of the decretal sum, the auctioneer proceeded on 6th August, 2026 to attach the motor vehicle. It is his case that the execution was procedural, lawful and proper. 7. He further states that service of the warrants of attachment, proclamation notice and auctioneer's invoice upon the applicant through WhatsApp was done out of an abundance of caution and courtesy, and that the applicant had sufficient time within which to satisfy the decree but failed to do so. He disputes the allegation that the motor vehicle was carrying 400 versatile gauge 28 grey iron sheets, each approximately 3metres long and 200litres of diesel fuel,, at the time of attachment. He relies on the inventory annexed to his affidavit, which he states shows that the vehicle had only a spare wheel, jack, handle

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and wheel spanner at the time of seizure. He further contends that the vehicle remains at Joyland Yard in the same condition in which it was attached. 8. It is further contended that although Co-operative Bank of Kenya is noted as the financier of the motor vehicle, the applicant remains the registered owner and the bank has not moved the Court to assert any proprietary interest in the vehicle and that the applicant has not demonstrated any substantial loss that it stands to suffer if stay is declined. 9. The applicant filed a further affidavit in which it clarified that it does not dispute the respondent’s right to pursue lawful execution. Its complaint, according to the applicant, concerns the legality and manner in which the execution was undertaken on 6th August, 2026 and the need to preserve the property seized pending determination of the application. The deponent further deposes that although the claimant alleges that the auctioneer attended its premises on 29th June 2026, proclaimed the motor vehicle and office furniture and issued a 7-day notice, no inventory or independent record identifying the specific office assets allegedly inspected, their condition or ownership has been produced. He deponed that the inventory annexed by the claimant as JK5 was prepared by Margaret Koho t/a Mallard auctioneers at the place of seizure but relates to the vehicle after it had been removed and taken to joyland storage yard. 10. The application was canvassed by way of written submissions. I have considered the Notice of Motion, the supporting affidavit, the replying affidavit, the further affidavit and the respective submissions. The issue for determination is therefore; whether the applicant has established sufficient grounds for the grant of a stay of execution and the consequential orders sought. 11. This is a concluded matter. Judgment was delivered by this Court on 24th April, 2026 in favour of the claimant in the sum of Kshs. 259,515.07/-. The judgment remains unsatisfied approximately four months later. I have not been shown any evidence that the judgment has been appealed against. It is important to bear in mind that execution of a lawful judgment is itself a lawful process. A successful litigant is ordinarily entitled to

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enjoy the fruits of his judgment and should not be unnecessarily deprived of that right. Indeed, the applicant expressly acknowledges that the decree-holder is entitled to pursue lawful execution. 12. The Small Claims Court was established with the objective of ensuring the timely disposal of proceedings before the Court, using the least expensive method, ensuring equal opportunity to access judicial services, fairness of process and simplicity of procedure. These objectives would be undermined if a successful litigants were kept from enjoying the fruits of a judgment for an indefinite period without sufficient justification. 13. Rule 28 of the Small Claims Court Rules, 2019 gives this Court power to stay execution of its decree or order upon sufficient grounds being demonstrated. The Rule further permits the Court to stay execution for purposes of allowing reasonable time for the judgment-debtor to comply with the decree and settle the claim, on such terms as the Court may direct. The applicant has, however, invoked alleged irregularities in the attachment process. In this regard, Rule 12 of the Auctioneers Rules, 1997 requires an auctioneer, upon receipt of a warrant or letter of instruction in respect of movable property, to prepare a proclamation indicating the specific items, their value and condition. The inventory is to be signed by the owner or an adult person residing or working at the premises, and where such person refuses to sign, the auctioneer is required to sign a certificate to that effect. The Rules further provide for a seven-day notice before removal of the proclaimed goods. 14. The Court of Appeal has emphasized the importance of compliance with Rule 12(1)(b) of the Auctioneers Rules, particularly the requirement that the proclamation specify the goods, their condition and value. In the circumstances of this case, however, the material before the Court establishes that the motor vehicle was specifically identified by its registration number and was duly proclaimed on 29th June, 2026. The applicant has not disputed that the vehicle was in fact proclaimed.

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15. The applicant's contention that the auctioneer did not separately inventory the goods allegedly contained in the vehicle at the time of seizure does not, in the circumstances of this case, invalidate the prior proclamation of the motor vehicle itself. The evidence before Court is that it was the motor vehicle that was proclaimed and subsequently attached. More importantly, the competing allegations concerning what was or was not inside the vehicle at the time of attachment do not, without more, establish that the attachment of the vehicle itself was unlawful. The decree-holder has placed before Court an inventory which he contends records the items found in the vehicle at the time of attachment. The applicant has not placed before Court independent evidence sufficient to establish, on a balance of probabilities, that the alleged iron sheets and diesel were seized as part of the execution process. 16. As regards the office furniture, fittings and equipment, the applicant alleges that some of the property belongs to a third party, Vincent Kiplangat t/a Juakali Solutions. That is a claim of a third-party interest in attached property. In the present application, however, the alleged third-party owner has not moved the Court to assert his proprietary interest in the property. The Court therefore cannot, on the basis of an unsubstantiated assertion by the judgment-debtor, conclusively determine the proprietary rights of a person who is not before it. 17. The applicant has also raised the issue of the bank's interest in the motor vehicle. The fact that Co-operative Bank of Kenya is noted as the financier of the vehicle does not, without more, establish that the entire execution process against the judgment-debtor is unlawful. If the bank asserts an independent proprietary or security interest capable of defeating or affecting the attachment, it remains at liberty to invoke the appropriate legal process. I have also considered the issue regarding the service of the warrants, proclamation notice and auctioneer's invoice through WhatsApp. Even assuming that such service was irregular, the applicant has not demonstrated how that irregularity caused it substantial prejudice, particularly when it admits that the decree remained unpaid and that the vehicle had previously been proclaimed. The applicant further disputes the auctioneer's charges. That issue, in my view, is distinguishable from the validity of the decree and the

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right of the decree-holder to execute. The applicant may challenge any disputed execution costs through the appropriate process, but the mere dispute regarding auctioneer's fees does not, by itself, warrant staying execution of a valid judgment. 18. I am equally not persuaded that the applicant has demonstrated sufficient grounds to justify the grant of a stay. The decree was issued on 24th April, 2026. The applicant has not demonstrated that it has made any substantial payment towards the decretal sum, offered satisfactory security for the decree, or otherwise taken meaningful steps towards satisfying the judgment. An applicant ordinarily has to demonstrate substantial loss, file the application without unreasonable delay and provide such security as may be ordered for the due performance of the decree. The fact that execution has commenced, without more, does not constitute substantial loss because execution is a lawful process. 19. In the present case, the application was brought after the motor vehicle had already been attached. The applicant has not demonstrated that its continued detention pending satisfaction of the decree will occasion substantial or irreparable loss beyond the ordinary consequences of lawful execution. Neither has the applicant proposed any meaningful security for the decretal sum. I am therefore unable to find that the applicant has established sufficient cause for this Court to interfere with the decree-holder's right to execute a judgment which remains unsatisfied. 20. The Court is mindful, however, that execution must at all times be undertaken strictly in accordance with the law. The auctioneer is therefore required to comply with the Auctioneers Rules in any further step taken pursuant to the warrants, including the requirements relating to inventory, preservation, advertisement and sale of attached property. The Court must also balance the interests of both parties. While the judgmentdebtor is entitled to protection against unlawful execution, the decree-holder is equally entitled to the fruits of a judgment lawfully obtained. To grant a stay on the material before Court would, in my view, further delay satisfaction of a judgment which has already remained unpaid for approximately four months and would defeat the statutory

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objective of the Small Claims Court of expeditious and inexpensive determination of disputes. 21. In the premises, I find that the Notice of Motion dated 7th August, 2026 lacks merit. Consequently, the application is dismissed. The interim orders, restraining execution are hereby vacated. 22. The decree-holder is at liberty to proceed with lawful execution of the decree, subject to strict compliance with the Auctioneers Act, the Auctioneers Rules, 1997. 23. The costs of the application shall be borne by the applicant. Ruling signed, dated and delivered electronically at Eldoret this 25th day of September, 2026 M.E Aligula-RM In the presence of C/A Mr. Lepatoiye

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