This ruling is in respect of the Notice of Motion application dated 17th March, 2026 brought pursuant to the provisions of sections 1A, 1B and 3A of the Civil Procedure Act, Order 22 Rule 22 and Order 51 Rule 1 Civil Procedure Rules.
Prayer 1 to 3 of the application are spent as they sought interim orders pending hearing of the application.
The outstanding prayers are prayer 4, 4(a), 5 and 6 of the application.
The application was supported by the averment in the Supporting Affidavit sworn by Anne Adhiambo Olang, the 2nd Interested Party, and the annexures thereto.
The application was opposed vide the Replying Affidavit sworn by Asman Chumba Omari on 28th April, 2026. It was the Respondent’s case that the application is premised on blatant lies. That the 2nd Interested Party and her Counsel obtained ex parte orders from the court by non-disclosure of material facts coupled with misleading information.
That after failing to comply with the conditions for stay of execution pending appeal issued by this honourable court, the 2nd Interested Party proceeded to file a completely new suit, namely Kisumu ELCOS NO. E022 OF 2024, where she obtained ex parte orders of stay of execution which were contrary to the judgment of the court without disclosing to the court the existence of this suit.
That the application dated 17th March, 2026 is clearly an abuse of the court process and that it does not meet the threshold for grant of the orders sought.
The application was heard on 4th May, 2026. It was submitted on behalf of the Applicant that the execution focuses on the 2nd Interested Party who only joined the proceedings in the year 2022, which was 7 years after the suit was filed. That the costs should be distributed against the Defendant and all the other Interested Parties.
On behalf of the Respondent, it was submitted inter alia that the Reference not having been filed, the interim orders were issued pending hearing of a non-existent Reference.
That the application for review filed after 2 years from the date of the judgment is an application brought after unreasonable and undue delay.
That regarding the warrants, the same were issued before 21st March, 2026 but were to expire on 23rd March, 2026 so there was no law breached.
I have considered the application, the contents of the Supporting Affidavit and the Replying Affidavit.
The first relief sought as contained in prayer 4 of the application is an order striking out and/or setting aside the warrant of attachment and sale together with the proclamation issued against the Applicant as the same were irregularly issued in violation of subsisting stay orders of the court.
The record shows that indeed a warrant of attachment of movable property in execution of decree for money dated 16th March, 2026 was issued on the same date to be executed by JENKS AUCTIONEERS for recovery of Kshs.353,865 against the Applicant.
Similarly, a warrant of sale of property in execution of decree for money of the same date was issued to JENKS AUCTIONEERS.
The record further shows that the application for issuance of the said warrants was made vide the letter dated 9th March, 2026 by Counsel for the Plaintiff.
The annexure to the Supporting Affidavit, namely the proclamation of attachment and Auctioneers Bill of Costs, show that the proclamation of the Applicant’s property was done on 16th March, 2026 at 11.00Hours and the Auctioneers Bill of Costs was dated the same day of 16th March 2026.
A reading of the court record shows that upon taxation of the Plaintiff’s Party and Party Bill of Costs on 19th February 2026, the Deputy Registrar granted an order of stay of execution that was to last 30 days. 30 days from 19/2/2026 were to end on 20th March, 2026.
It was not denied that the warrants were issued while the court order subsisted. The Respondent only justified his action on the grounds that the warrants were to expire on 23/3/2026, which was after the lapse of the order of stay.
It is clear that the Plaintiff commenced the execution process in the subsistence of an order of stay of execution issued by the Deputy Registrar. This was unlawful. The applicant is entitled to have the warrants issued pursuant to the said execution lifted.
The 2nd relief sought is an order that the court may review and/or vary the judgment and consequential orders on costs and order that the taxed costs arising from the Bill of costs dated 19th February, 2026 be apportioned equally among the Defendant and the Interested Parties.
Grounds for review of a judgment are contained in section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules as follows
Order 45 Rule 1 (1) Civil Procedure Rules provides that: -
“Any person considering himself aggrieved-
a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, or
b) by a decree or order from which no appeal is hereby allowed;
and from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order,
may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”
An applicant seeking review of a judgment/decree or order must therefore prove: -
a) discovery of a new and important matter or evidence or
b) some mistake or error apparent on the face of the record or
c) any other sufficient reason and
d) the application must be brought without unreasonable delay.
None of the grounds has been demonstrated.
The liability of the judgment debtors in respect of the costs is joint and several. The court already delivered a ruling dated 27th November 2025.
The next relief sought is an order that the Respondent be condemned to pay the costs of the application on higher scale owing to blatant disregard for court orders.
It was submitted on behalf of the Respondent and admitted by Counsel for the Applicant that although the Applicant sought and obtained an order of stay of execution herein dated 19th March, 2026, pending hearing of the Reference, no such Reference had been filed.
I find that both parties have misconducted themselves before court. While the Applicant misrepresented to the court that a Reference existed based on which an order of stay was granted, the Respondent commenced the execution process in the subsistence of an order of stay of execution. None of the parties should benefit or be compensated by way of costs.
The upshot is that the application succeeds partly. Prayer 4 of the application is allowed; the warrant of attachment and warrant of sale are hereby lifted, and all consequent actions by the Respondent, namely proclamation of the applicant’s property, are set aside.
The rest of the prayers in the application fail.
No orders as to costs.
Orders accordingly.
Ruling dated and signed at Kisumu and delivered this 18th day of June, 2026.
E. ASATI,
JUDGE.
In the presence of:
Atika: Court Assistant.
Otieno Obiero for the 2nd Interested Party/Applicant.
Owino for the Plaintiff/Respondent.
| ELC 76/2015 RULING 2 |