Kisoya v Maingi; Blegif Consult Auctioneers (Interested Party) (Civil Case 198 of 2019) [2025] KEMC 104 (KLR)
The bottom line
#A Kenyan magistrate halted a vehicle auction and ordered the car returned because the judgment-holder skipped key execution steps.
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 warrants of attachment and sale issued herein should be set aside
- 2.Whether the interested party should be ordered to release the motor vehicle(s) to the applicant unconditionally
- 3.Who should bear the costs of this application
Key legal issues
#Whether notice of entry of judgment was required before execution
No notice of entry of judgment was required because the defendant was represented and participated until judgment
Judgment was delivered on 27/2/2023 in the presence of counsel for the defendant (one Miss Dege) though in the absence of plaintiff's counsel. Since the defendant was duly represented and participated to the end, the proviso to Order 22 rule 6 requiring ten days' notice of entry of judgment (for default judgments) was not triggered.
Whether the decree and certificate of costs were properly extracted
The decree was defective - undated and unsigned, costs not ascertained as prescribed, and interest calculation not indicated
Order 21 rule 8 requires a decree to be dated and signed; here only the certificate of costs was dated and signed. Order 21 rule 9 requires costs to be agreed, fixed, certified or taxed before being stated; that was not done. Order 22 rule 9A procedure for claiming costs was not followed, and the decree did not show how interest was calculated. Execution on such a decree is an ambush and the decree was set aside.
Whether the warrants of attachment and sale were properly obtained
They were not - the plaintiff's counsel applied for execution through a letter rather than the prescribed application and Form No. 14
Order 22 rule 6 prescribes that an application for execution be made to the court which passed the decree in accordance with Form No. 14 of Appendix A. The record shows the plaintiff's counsel sought the warrants by letter. Without a proper application for execution, the warrants had no basis and were set aside.
Whether the proclamation notice was duly served
The interested party failed to establish service of the mandatory 7-day proclamation notice
Rule 12 of the Auctioneers Rules requires a proclamation in Sale Form 2 with an inventory signed by the owner or an adult at the premises, and a certificate where anyone refuses to sign. The interested party did not disclose who was served or who declined to sign, and exhibited no certificate. Service of the proclamation notice was therefore not sufficiently established.
Whether the motor vehicle KCT 149 B was actually sold by public auction
The court found no auction or sale took place, given absence of evidence of advertisement, notification of sale, transfer application, purchase receipt, buyer identity or remittance of proceeds
The interested party alleged the vehicle was sold on 5/3/2025 after advertisement, but attached no evidence of the advertisement, notification of sale, the Rule 17(5) and (6) transfer application, a purchase receipt under Order 22 rule 64 and rule 18(3), or remittance of proceeds. The buyer and price were undisclosed, so the court concluded no sale was done.
Legal principles established
#- Execution cannot proceed on a defective decree; a decree should be dated and signed separately from the certificate of costs
- Without a proper application for execution in the prescribed form, warrants of attachment and sale have no basis
- An auctioneer must prove service of the mandatory 7-day proclamation notice and the required certificate where service is refused, failing which service is not established
- A flawed execution process cannot be allowed to stand
Court orders
#- 1.The firm of Okwera Oteko & Company Advocates granted leave to come on record for the Judgment debtor in place of the firm of Muchui & Company Advocates
- 2.Blegif Consult Auctioneers joined as an Interested Party
- 3.The Decree and Certificate of costs issued on 7/1/2015 [sic] set aside; the decree-holder directed to follow the laid down procedure and extract a proper decree and certificate of costs
- 4.The warrants of attachment and sale of movable property issued on 6/2/2025 set aside; stay of execution of the decree granted until a proper decree and certificate of costs are extracted and a proper application for execution filed
- 5.The Interested Party directed to unconditionally release the Defendant's motor vehicle reg. no. KCT 149 B and any other movable property in their custody, forthwith
- 6.Any charges payable to the interested party to be paid by the plaintiff/respondent
- 7.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent discretion of the court over execution of its decree under the Civil Procedure Act and Civil Procedure Rules; application brought by notice of motion following judgment and decree in the suit
Relief refused
#Release of motor vehicle reg. no. KCH 227 N with cargo
The applicant did not adduce evidence that the vehicle was attached or that it carried cargo; the interested party denied attaching it
Costs of the application
The applicant did not ask for costs
Costs
Each party shall bear its own costs
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.
Without an application for execution, the warrants of attachment and sale have no basis.
I find that the interested party and by extension the decree-holder have failed to sufficiently establish that the applicant was duly served with a proclamation notice.
From the material on record, I conclude that no auction or sale of the applicant’s motor vehicle was done.
The Decree and Certificate of costs issued herein on 7/1/2015 are hereby set aside. The decree-holder is directed to follow the laid down procedure and extract a proper decree and certificate of costs;
The Interested Party is hereby directed to unconditionally release the Defendant's motor vehicle reg. no. KCT 149 B and any other movable property in their custody, forthwith;
Given that the applicant did not ask for costs of the application, each party shall bear its own costs.
Issues in the judgment
#The disposition refers to the Decree and Certificate of costs being issued on 7/1/2015, while the body of the judgment states the decree was extracted on 7/1/2025
The prayer to come on record names 'Okwera Oteko & Company Advocates' but the issues section refers to 'Okwera Oteko & Associates Advocates'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kisoya v Maingi; Blegif Consult Auctioneers (Interested Party) (Civil Case 198 of 2019) [2025] KEMC 104 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/104/eng@2025-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.