Plaintiff/Applicant v Defendant/Respondent
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the certificate of costs was executable in the circumstances of this case
- 2.Whether the warrants of attachment dated 20th December 2023 were executed prematurely
Key legal issues
#Whether a certificate of costs can found execution
No; the certificate of costs is only for ascertainment of payable costs and cannot support warrants of attachment; execution was irregular, null and void
The court found no decree was extracted by any party despite both execution applications being titled 'Application for the execution of Decree'. Relying on section 38 of the Civil Procedure Act and Order 22 Rule 6 of the Civil Procedure Rules, the court held that execution applications under those provisions presuppose a decree. A certificate of costs merely ascertains the payable costs and does not underpin execution; warrants issued without a decree are a nullity.
Whether warrants of attachment dated 20th December 2023 should be lifted
Yes, the warrants were lifted, with liberty to the decree holder to execute afresh after obtaining a decree
Having found the execution process null and void for want of a decree, the court granted prayer 2 lifting the warrants and prayer 3 restraining attachment, but limited the restraint to attachment on the strength of the impugned warrants, permitting fresh execution once a decree is lawfully obtained.
Legal principles established
#- A certificate of costs is not an executable instrument; execution for costs requires a decree extracted on record
- An application for execution under Order 22 Rule 6 of the Civil Procedure Rules presupposes the existence of a decree
Court orders
#- 1.The Warrants of attachment dated 20th December 2023 are lifted with liberty to the 1st Defendant to apply for execution following the procedure set out in law
- 2.An order restraining the 1st Defendant/Respondent by himself, their officers, agents and/or anyone acting on their behalf from attaching the Plaintiff's property on the strength of the warrants of attachment dated 20th December 2023
- 3.Prayer 4 of the application (leave to respond to the Notice to Show Cause dated 30th June 2023) is disallowed
- 4.Each party shall bear their costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original supervisory jurisdiction over execution within the suit; application brought under Order 51 Rule 1, Order 22 and Order 10 Rule 11 of the Civil Procedure Rules
Relief refused
#Leave to respond to the Notice to Show Cause dated 30th June 2023
The notice was issued pursuant to a faulty execution application and the execution was found irregular, null and void
Costs of the application
The taxed costs remain unpaid and no efforts have been made to settle them
Costs
Each party shall bear their costs of the application.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Warrants of attachment dated 20th December 2023 are hereby lifted with liberty to the 1st Defendant to apply for execution following the procedure set out in law.
An order is hereby issued restraining the 1st Defendant/Respondent by himself, their oficer, agents and/or anyone acting on their behalf from attaching the Plaintifi’s property on the strength of the warrants of attachment dated 20th December 2023.
In the present case, there was no decree under which the certificate of costs could be underpinned. The certificate of costs is only for the ascertainment of the payable costs and is not the decree.
Prayer 4 of the application herein is disallowed.
Each party shall bear their costs of the application.
Issues in the judgment
#The judgment does not state the case number, the court or its division; the heading and cause details are missing from the provided text
Internal contradiction on the date of judgment in the suit: earlier passage says judgment was delivered on 16th March 2022, later passage says 16th March 2023
Prayer 3 as drafted sought restraint on going to the Applicant's homestead to attach any property generally, but the order made is limited to the warrants of 20th December 2023; the judgment itself acknowledges this limitation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Plaintiff/Applicant v Defendant/Respondent", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/680/eng@2025-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.