( Being an appeal from the ruling and orders by Hon. L.G. Okwengu, Senior Resident Magistrate, in Kilungu Magistrate’s Civil Suit No. E006 of 2024 delivered on 19 th June 2025 )
RULING.
1. This appeal arises from the judgment delivered in Kilungu SPMCC No. E006 of 2024. The Appellant was the Defendant in the said suit and the Respondents were the Plaintiffs therein.
2. The claim arose from a fatal road traffic accident that involved the deceased who was driving motor vehicle registration number KDG 613N along the said road when it collided with motor vehicle registration number KDC 556T driven by the Appellants driver. The estate of the deceased filed the primary suit. Prior to the hearing of the said suit, the parties recorded a consent on liability in the ratio of 80:20 in favour of the Plaintiffs. They proceeded to tender evidence and submit on quantum.
3. In the judgment rendered on the 30 th January 2025, the court pronounced itself thus:
a. Liability 80:20
b. Pain & suffering Kshs. 50,000.00
c. Loss of expectation of life Kshs. 100,000.00
d. Loss of dependency Kshs. 6,037,284.00
e. Special damages Kshs. 71,710.00
f. Less 20% Kshs. 1,207,456.80
g. Total Kshs. 4,979,827.20
4. Subsequent to the above judgment, the Defendants did file an application dated 14 th March 2025. The application sought to set aside the judgment and decree of the court and for a stay of execution of the decree. In a ruling delivered on the 19 th June 2025, the court declined to grant the prayers and dismissed the application with costs to the Plaintiff/Respondent.
5. In the Memorandum of Appeal dated 14 th July 2025, the Appellant has asked this court to set aside the judgment on quantum on the following grounds:
i. The Honourable Magistrate erred in law and fact by failing to consider the merits of the application dated 14/3/2025.
ii. The Honourable Court completely disregarded the appellants written submissions dated 11th April 2025.
iii. The Honourable Magistrate misapprehended the application before him thus rendered a defective decision dated 19/6/2025.
iv. The Honourable Magistrate failed to comply with Order 21 rule 5 of the Civil Procedure rules, 2010. The ruling delivered failed to appreciate and address all issues raised in the appellant's application.
v. The Honourable Court erred by failing to address its mind to the partial settlement of the court's decree vis a vis the respondent's execution of the same decree for sums duly paid.
vi. The Honourable Court erred in law in dismissing the appellant's application with costs .
6. The Appellant seeks that the ruling be set aside and the application be allowed.
7. The gist of the application is that the warrants of attachment obtained herein by the auctioneers herein was obtained in error and in contravention of Order 21 Rule 8 of the Civil Procedure Rules, 2010. The warrants of attachment included the sum of Kshs. 3,000.000.00 that had already been paid by the Appellant and further that the decree holder had not involved the Appellant in agreeing on the costs before the decree was drawn and issued. The Appellant thus sought that as the warrants had been issued with the erroneous figure and the parties had not agreed on the costs, then the warrants need to be recalled and the execution process restarted in compliance with the provisions of Order 21 Rule 8 of the CPR.
8. For context, the provisions of Order 21 Rule 8 of the CPR state as follows:
“(1) A decree shall bear the date of the day on which the judgment was delivered.
(2) Any party in a suit in the High Court may prepare a draft decree and submit it for the approval of the other parties to the suit, who shall approve it with or without amendment, or reject it, without undue delay; and if the draft is approved by the parties, it shall be submitted to the registrar who, if satisfied that it is drawn up in accordance with the judgment, shall sign and seal the decree accordingly.
(3) If no approval of or disagreement with the draft decree is received within seven days after delivery thereof to the other parties, the registrar, on receipt of notice in writing to that effect, if satisfied that the draft decree is drawn up in accordance with the judgment, shall sign and seal the decree accordingly.
(4) On any disagreement with the draft decree any party may file the draft decree marked as “for settlement” and the registrar shall thereupon list the same in chambers before the judge who heard the case or, if he is not available, before any other judge, and shall give notice thereof to the parties.
(5) The provisions of sub-rules 2, 3 and 4 shall apply to a subordinate court and reference to the registrar and judge in the sub rules shall refer to magistrate.
(6) Any order, whether in the High Court or in a subordinate court, which is required to be drawn up, shall be prepared and signed in like manner as a decree.
(7) Nothing in this rule shall limit the power of the court to approve a draft decree at the time of pronouncing judgment in the suit, or the power of the court to approve a draft order at the time of making the order .
9. The above provisions provide a basis upon which a decree and subsequently warrants of attachment should be applied for and execution undertaken. Upon judgment being entered for a successful party, the party is obligated to apply for the decree on the judgment and also for a decree on the costs. The warrants of attachment should thus be applied for only after the party had obtained both a decree on the judgment and the Certificate of costs and then proceed with the execution. The parties are also at liberty to agree and consent on the payable costs in lieu of assessment of the same by the trial court.
10. In addition, where part of the decretal sum has been paid, it is required that the same be factored and netted off from the outstanding sum, as it affects not only the decretal sum but the calculation of interest due on the decretal sum. Where this is not done, the same renders the warrants of attachment defective, null and void. These lapses are not cosmetic but fundamental and the decree holder and auctioneer are required to adhere to them faithfully.
11. I have read the Replying Affidavit if the Respondent to the application dated 14 th March 2025. The Respondent avers that the application should be dismissed, as it was, because the Appellant was aware of the judgment and the lapses are not fatal to the execution process already commenced by the Respondent.
12. Nothing can be further from the truth. First, the part payment of decretal sum does not absolve the decree holder of the duty to ensure that the provisions of the CPR when a decision is made to execute for the balance. Secondly, the discretion of the court to assess the costs only crystalize when activated and in the event the parties fail to agree. The same will however be preceded by a request from one of the parties. That was not the situation herein. The Respondent proceeded to execute without taking care of the statutory requirements.
13. As stated in the determination in Karuri Stores Pharmaceuticals Ltd & Another v Acacia Medical Centre Limited [20211 eKLR , those lapses render the whole process illegal and thus a nullity.
" All that this Court can do is to satisfy itself whether the decree was extracted in accordancе with the consent judgment and whether the interest in the warrants was properly calculated....... There were part payments made by the defendant in the years 2011 and/or 2013. The calculations should have taken into consideration those payments made and apply the interest accordingly. Accordingly, the warrants of attachment herein were illegal and cannot stand. They are set aside for being illegal ."
14. The above position was reiterated in the cited case of Edward Kamau & Another -VS- Hannah Mukui Gichuki & Another [2015) eKLR where the High Court expressed itself as follows:
“....Even decrees and orders from the lower court must be prepared in compliance with sub rules 1,2,3 and 4 of the Order 21 rule 8 of the civil procedure Rules. This was not done in this case which was an irregularity as the applicants were not given an opportunity to approve the decree. There is also no evidence from the annexed handwritten judgement that the trial magistrate approved a draft decree at the time of her decision in accordance with sub rule 7 order 21 rule 8 above. In my view, there is no room for circumvention of the rules as reproduced herein as that can be interpreted to mean that the respondent was driven by bad faith or had the intention of stealing a match on the applicants ."
15. In essence, the appeal by the Appellant herein is well grounded. The Respondent was in a hurry to enjoy the fruits of their judgment and threw away the need to ensure that the procedure is followed. Allowed to stand, the same would be a travesty of justice, especially where parties had proceeded on the basis of some substantial concurrence by having a consent on the liability as between the parties.
16. I will thus allow the appeal in the following terms:
a. The ruling of the trial court dated 19 th June 2025 on the application dated 14 th March 2026 is hereby set aside.
b. The Warrants of Attachment and Sale issued to Mamalo Auctioneers are hereby recalled and set aside. The execution of the decree is also stayed pending compliance with this Orders by the decree holder.
c. The Decree holder is at liberty to re-commence the execution process in compliance with the provisions of Order 21 Rule 8 of the CPR.
d. The costs of the application dated 14 th March, 2025 and this appeal are awarded to the Appellants.
e. The costs incurred in the illegal execution to be borne by the Respondent and Auctioneers respectively .
Dated, signed and delivered virtually via Microsoft Teams this 12 th day of August 2026.
HCCA NO. E046 OF 2025 BADAR HARDWARE LTD VS VERONICA M. VUTO & ANO. JUDGMENT Pg. 7
RULING.
1. This appeal arises from the judgment delivered in Kilungu SPMCC No. E006 of 2024. The Appellant was the Defendant in the said suit and the Respondents were the Plaintiffs therein.
2. The claim arose from a fatal road traffic accident that involved the deceased who was driving motor vehicle registration number KDG 613N along the said road when it collided with motor vehicle registration number KDC 556T driven by the Appellants driver. The estate of the deceased filed the primary suit. Prior to the hearing of the said suit, the parties recorded a consent on liability in the ratio of 80:20 in favour of the Plaintiffs. They proceeded to tender evidence and submit on quantum.
3. In the judgment rendered on the 30 th January 2025, the court pronounced itself thus:
a. Liability 80:20
b. Pain & suffering Kshs. 50,000.00
c. Loss of expectation of life Kshs. 100,000.00
d. Loss of dependency Kshs. 6,037,284.00
e. Special damages Kshs. 71,710.00
f. Less 20% Kshs. 1,207,456.80
g. Total Kshs. 4,979,827.20
4. Subsequent to the above judgment, the Defendants did file an application dated 14 th March 2025. The application sought to set aside the judgment and decree of the court and for a stay of execution of the decree. In a ruling delivered on the 19 th June 2025, the court declined to grant the prayers and dismissed the application with costs to the Plaintiff/Respondent.
5. In the Memorandum of Appeal dated 14 th July 2025, the Appellant has asked this court to set aside the judgment on quantum on the following grounds:
i. The Honourable Magistrate erred in law and fact by failing to consider the merits of the application dated 14/3/2025.
ii. The Honourable Court completely disregarded the appellants written submissions dated 11th April 2025.
iii. The Honourable Magistrate misapprehended the application before him thus rendered a defective decision dated 19/6/2025.
iv. The Honourable Magistrate failed to comply with Order 21 rule 5 of the Civil Procedure rules, 2010. The ruling delivered failed to appreciate and address all issues raised in the appellant's application.
v. The Honourable Court erred by failing to address its mind to the partial settlement of the court's decree vis a vis the respondent's execution of the same decree for sums duly paid.
vi. The Honourable Court erred in law in dismissing the appellant's application with costs .
6. The Appellant seeks that the ruling be set aside and the application be allowed.
7. The gist of the application is that the warrants of attachment obtained herein by the auctioneers herein was obtained in error and in contravention of Order 21 Rule 8 of the Civil Procedure Rules, 2010. The warrants of attachment included the sum of Kshs. 3,000.000.00 that had already been paid by the Appellant and further that the decree holder had not involved the Appellant in agreeing on the costs before the decree was drawn and issued. The Appellant thus sought that as the warrants had been issued with the erroneous figure and the parties had not agreed on the costs, then the warrants need to be recalled and the execution process restarted in compliance with the provisions of Order 21 Rule 8 of the CPR.
8. For context, the provisions of Order 21 Rule 8 of the CPR state as follows:
“(1) A decree shall bear the date of the day on which the judgment was delivered.
(2) Any party in a suit in the High Court may prepare a draft decree and submit it for the approval of the other parties to the suit, who shall approve it with or without amendment, or reject it, without undue delay; and if the draft is approved by the parties, it shall be submitted to the registrar who, if satisfied that it is drawn up in accordance with the judgment, shall sign and seal the decree accordingly.
(3) If no approval of or disagreement with the draft decree is received within seven days after delivery thereof to the other parties, the registrar, on receipt of notice in writing to that effect, if satisfied that the draft decree is drawn up in accordance with the judgment, shall sign and seal the decree accordingly.
(4) On any disagreement with the draft decree any party may file the draft decree marked as “for settlement” and the registrar shall thereupon list the same in chambers before the judge who heard the case or, if he is not available, before any other judge, and shall give notice thereof to the parties.
(5) The provisions of sub-rules 2, 3 and 4 shall apply to a subordinate court and reference to the registrar and judge in the sub rules shall refer to magistrate.
(6) Any order, whether in the High Court or in a subordinate court, which is required to be drawn up, shall be prepared and signed in like manner as a decree.
(7) Nothing in this rule shall limit the power of the court to approve a draft decree at the time of pronouncing judgment in the suit, or the power of the court to approve a draft order at the time of making the order .
9. The above provisions provide a basis upon which a decree and subsequently warrants of attachment should be applied for and execution undertaken. Upon judgment being entered for a successful party, the party is obligated to apply for the decree on the judgment and also for a decree on the costs. The warrants of attachment should thus be applied for only after the party had obtained both a decree on the judgment and the Certificate of costs and then proceed with the execution. The parties are also at liberty to agree and consent on the payable costs in lieu of assessment of the same by the trial court.
10. In addition, where part of the decretal sum has been paid, it is required that the same be factored and netted off from the outstanding sum, as it affects not only the decretal sum but the calculation of interest due on the decretal sum. Where this is not done, the same renders the warrants of attachment defective, null and void. These lapses are not cosmetic but fundamental and the decree holder and auctioneer are required to adhere to them faithfully.
11. I have read the Replying Affidavit if the Respondent to the application dated 14 th March 2025. The Respondent avers that the application should be dismissed, as it was, because the Appellant was aware of the judgment and the lapses are not fatal to the execution process already commenced by the Respondent.
12. Nothing can be further from the truth. First, the part payment of decretal sum does not absolve the decree holder of the duty to ensure that the provisions of the CPR when a decision is made to execute for the balance. Secondly, the discretion of the court to assess the costs only crystalize when activated and in the event the parties fail to agree. The same will however be preceded by a request from one of the parties. That was not the situation herein. The Respondent proceeded to execute without taking care of the statutory requirements.
13. As stated in the determination in Karuri Stores Pharmaceuticals Ltd & Another v Acacia Medical Centre Limited [20211 eKLR , those lapses render the whole process illegal and thus a nullity.
" All that this Court can do is to satisfy itself whether the decree was extracted in accordancе with the consent judgment and whether the interest in the warrants was properly calculated....... There were part payments made by the defendant in the years 2011 and/or 2013. The calculations should have taken into consideration those payments made and apply the interest accordingly. Accordingly, the warrants of attachment herein were illegal and cannot stand. They are set aside for being illegal ."
14. The above position was reiterated in the cited case of Edward Kamau & Another -VS- Hannah Mukui Gichuki & Another [2015) eKLR where the High Court expressed itself as follows:
“....Even decrees and orders from the lower court must be prepared in compliance with sub rules 1,2,3 and 4 of the Order 21 rule 8 of the civil procedure Rules. This was not done in this case which was an irregularity as the applicants were not given an opportunity to approve the decree. There is also no evidence from the annexed handwritten judgement that the trial magistrate approved a draft decree at the time of her decision in accordance with sub rule 7 order 21 rule 8 above. In my view, there is no room for circumvention of the rules as reproduced herein as that can be interpreted to mean that the respondent was driven by bad faith or had the intention of stealing a match on the applicants ."
15. In essence, the appeal by the Appellant herein is well grounded. The Respondent was in a hurry to enjoy the fruits of their judgment and threw away the need to ensure that the procedure is followed. Allowed to stand, the same would be a travesty of justice, especially where parties had proceeded on the basis of some substantial concurrence by having a consent on the liability as between the parties.
16. I will thus allow the appeal in the following terms:
a. The ruling of the trial court dated 19 th June 2025 on the application dated 14 th March 2026 is hereby set aside.
b. The Warrants of Attachment and Sale issued to Mamalo Auctioneers are hereby recalled and set aside. The execution of the decree is also stayed pending compliance with this Orders by the decree holder.
c. The Decree holder is at liberty to re-commence the execution process in compliance with the provisions of Order 21 Rule 8 of the CPR.
d. The costs of the application dated 14 th March, 2025 and this appeal are awarded to the Appellants.
e. The costs incurred in the illegal execution to be borne by the Respondent and Auctioneers respectively .
Dated, signed and delivered virtually via Microsoft Teams this 12 th day of August 2026.
HCCA NO. E046 OF 2025 BADAR HARDWARE LTD VS VERONICA M. VUTO & ANO. JUDGMENT Pg. 7