1. Before this Court for determination is the Notice of Motion dated 31st July 2025 by the Applicant seeking, inter alia, a stay of execution pending the hearing and determination of the application, the setting aside and/or quashing of the warrants of attachment and sale of movable property dated 18th July 2025 together with the proclamation notice thereto, a permanent restraint against the Respondent and her agents from proclaiming, attaching and/or selling the Applicant’s properties, and costs of the application.
2. The application is premised on the grounds set out on its face and supported by the Applicant’s affidavit and written submissions. The gravamen of the Applicant’s case is that although a party and party Bill of Costs was taxed by the Deputy Registrar on 21st May 2025 in the sum of Kshs. 94,130, the 1st Respondent’s Advocate did not move the Court under section 51(2) of the Advocates Act to have the certificate of costs adopted as a judgment of the Court, nor was any decree extracted or served upon the Applicant prior to execution.
3. It is contended that notwithstanding the foregoing, warrants of attachment and a proclamation notice dated 18th July 2025 were irregularly issued and served upon the Applicant on 24th July 2025 by Zephania Amenya Areba t/a Remma Auctioneers. The Applicant argues that the execution process was therefore procedurally defective, unlawful, and a nullity for want of a judgment or decree capable of execution.
4. In opposition, the 1st Respondent filed a replying affidavit sworn by her Advocate, Edwin Simiyu, contending that the application is misconceived, actuated by malice, and amounts to an abuse of the court process. It is deposed that the Applicant was aware of the taxed costs and that the execution process was properly undertaken. The Respondent asserts that the Applicant has not demonstrated any prejudice and that the application ought to be dismissed with costs.
5. Parties were directed to canvass the application by way of written submissions. I have carefully considered the pleadings, affidavits, submissions and authorities cited by both sides.
6. The principal issue that arises for determination is whether the warrants of attachment and proclamation issued on 18th July 2025 were lawful and regular in the absence of a judgment and decree adopting the certificate of costs.
7. Section 51(2) of the Advocates Act provides that the certificate of the taxing officer shall, unless set aside or altered by the Court, be final as to the amount of the costs covered thereby, and that the Court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due.
8. The jurisprudence in this area is settled. In Rubo Kimngetich Arap Cheruiyot v Peter Kiprop Rotich [2006] eKLR, Ibrahim J (as he then was) emphatically stated that a certificate of costs is not an executable legal instrument and that warrants of attachment and sale cannot lawfully issue on the basis of a certificate of costs without a decree.
9. Similarly, in Njuguna Matiri & Co. Advocates v National Bank of Kenya Misc. Appl. No. 148 of 2014, the Court affirmed that a certificate of costs must be adopted as a judgment of the Court before a decree can issue and execution can lawfully proceed.
10. More recently, in Union of Kenya Civil Servants v Kenya County Government Workers Union & another; Mbuvi t/a Katunga Mbuvi & Co Advocates (Advocate) [2023] KEELRC 145 (KLR), the Court held that warrants of attachment obtained without a judgment or decree were premature, illegal and unprocedural, and that execution could not issue merely on the strength of a taxed bill.
11. The same position was reiterated in Gatumuta v Kenya Power & Lighting Co. Ltd [2023] KEHC 249 (KLR), where the Court observed that a judgment creditor must move the Court to enter judgment in his favour following taxation and issuance of a certificate of costs before proceeding to execute, failing which there would be no judgment to execute.
12. Applying the above principles to the present case, it is not disputed that the Deputy Registrar taxed the party and party Bill of Costs at Kshs. 94,130 on 21st May 2025. It is also not disputed that the 1st Respondent did not file any application to have the said certificate of costs adopted as a judgment of this Court under section 51(2) of the Advocates Act, nor was any decree extracted and served upon the Applicant.
13. In the absence of a judgment and decree, the warrants of attachment and proclamation dated 18th July 2025 lacked a lawful foundation. The Court is unable to discern any legal basis upon which execution could properly issue when the certificate of costs had not been converted into a judgment of the Court.
14. The Respondent’s contention that the execution was regular cannot stand in light of the clear statutory framework and binding judicial precedent. Execution proceedings are not a mere technicality; they go to the heart of due process and the protection of a litigant’s proprietary rights under Article 40 of the Constitution.
15. To permit execution to proceed in the absence of a judgment and decree would amount to sanctioning an illegality and undermining the integrity of the judicial process. Courts of law cannot countenance such procedural shortcuts, however small the decretal sum may appear.
16. Consequently, I find and hold that the warrants of attachment and proclamation dated 18th July 2025 were obtained prematurely, irregularly and unlawfully, and are therefore a nullity in law.
17. In the premises, the Notice of Motion dated 31st July 2025 is merited and is allowed in the following terms:
a. A stay of execution is hereby granted pending the hearing and determination of any lawful execution proceedings founded on a valid judgment and decree.
b. The warrants of attachment and sale of movable property dated 18th July 2025 together with the proclamation notice thereto are hereby set aside and quashed.
c. The 1st Respondent and her agents, including Remma Auctioneers, are permanently restrained from proclaiming, attaching and/or selling the Applicant’s properties on the basis of the impugned warrants.
d. The 1st Respondent shall bear the costs of this application.
18. It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT EMBU THIS 29th DAY OF January, 2026.
………………………………………….
HON. C. CHERONO
JUDGEENVIRONMENT AND LAND COURT
IN THE PRESENCE OF;
1. Mr. Mugun for the Respondent
2. Appellant/Advocate-absent.
3. Diana C/A