' 1. Before this Court for determination is the Notice of Motion dated 26th June 2025, brought by the Applicant, Business Partners International Kenya (II) Limited, seeking the following primary orders: -
a) The Court do issue breaking-in orders to enable the Auctioneer and/or the successful purchaser to gain access to the premises known as Land Reference No. 209/3656 (IR. No. 9448), Laibon Hotel, South B, Nairobi County, for purposes of inspection;
b) The Officer Commanding Industrial Area Police Station do provide police assistance and supervision in the execution of the said orders; and
c) Costs of the Application be borne by the Respondent.
2. The Application is supported by the Affidavit of Dennis K. Mwangi, the instructed Auctioneer, sworn on 26th June 2025.
3. The uncontested facts are that the Respondent, Rudufu Limited, is indebted to the Applicant in the sum of Kshs. 167,426,883.63, secured by a legal charge over the suit property. Following persistent default, the Applicant exercised its statutory power of sale under Section 96 of the Land Act, 2012.
4. Pursuant to instructions dated 30th January 2025, the Auctioneer issued the requisite statutory notices, advertised the sale, and successfully conducted a public auction on 28th February 2025, at which a purchaser emerged.
5. The Applicant contends that despite the lawful auction, the Respondent has continuously obstructed the Auctioneer and the purchaser from accessing the premises. The Auctioneer was unable, on at least eight occasions, to enter the premises to photograph or inspect the same before the auction. Even after the sale, the purchaser has been denied entry for inspection, frustrating the process of completing the transaction.
6. The Applicant further expresses apprehension that the Respondent is actively disposing of movable assets from the premises, thereby threatening to defeat the substratum of the charge and render the auction nugatory.
7. Notably, the Respondent has neither filed a replying affidavit nor submissions, despite service. The Application is therefore unopposed.
Analysis and Determination
8. Having considered the Application, the Supporting Affidavit, annexures thereto, and the submissions filed by learned counsel for the Applicant, I find that the only issue for determination is whether breaking-in and police assistance orders sought are merited.
9. Rule 9 of the Auctioneers Rules, 1997 provides that where there is a risk of resistance, intimidation, or breach of peace, an auctioneer or executing party may seek the assistance of the police. The application may be made ex parte or inter partes. For clarity, the provision of Rule 9 of the Auctioneers Rules 1997 provides as hereunder;
“9. Police assistance
(1) Where an auctioneer has reasonable cause to believe that—
(a) he may have to break the door of any premises where goods may be seized or repossessed; or
(b) he may be subject to resistance or intimidation by the debtor or other person; or
(c) a breach of the peace is likely as a result of seizure, repossession or attempted seizure or repossession of any property, the auctioneer shall request for police escort from the nearest police station in order to carry out his duties peacefully.
(2) An application under this rule shall be by motion by way of a miscellaneous application support by an affidavit and may be heard ex parte.
10. In the present case, the uncontested facts are that the Respondent, Rudufu Limited, is indebted to the Applicant in the sum of Kshs. 167,426,883.63, secured by a legal charge over the suit property. Following persistent default, the Applicant exercised its statutory power of sale under Section 96 of the Land Act, 2012.
11. Pursuant to instructions dated 30th January 2025, the Auctioneer issued the requisite statutory notices, advertised the sale, and successfully conducted a public auction on 28th February 2025, at which a purchaser emerged.
12. The Applicant contends that despite the lawful auction, the Respondent has continuously obstructed the Auctioneer and the purchaser from accessing the premises. It is deponed that the Auctioneer was unable, on at least eight occasions, to enter the premises to photograph or inspect the same before the auction.
13. The Applicant further expresses apprehension that the Respondent is actively disposing of movable assets from the premises, thereby threatening to defeat the substratum of the charge and render the auction nugatory.
14. The Respondent has neither filed a replying affidavit nor submissions, despite service as demonstrated in the affidavit of service dated 28th July 2025 and filed on the same day. The Application is therefore unopposed.
15. In Kang’ethe v Mumo ((Sued on behalf of John Mutisya Mumo)) [2022] KEELC 2434 (KLR).], the Court was clear that police intervention is permitted where necessary to facilitate peaceful execution and not to carry out the execution themselves. The Court emphasized that the role of the police is to ensure peace and prevent obstruction of court processes. The Court expressed itself as follows: -
“46. I beg to point out that decrees and/or orders, which are issued vide civil proceedings, are obliged to be executed by Licensed Auctioneers, Class B or where allowed Class A, in accordance with the Auctioneers Act, 1996 and the Rules made thereunder.
48. Nevertheless, where there is need and/or necessity for Police protection or, better still, assistance, the law provides a window and the executing officer is obliged to file an appropriate Application for consideration by the Court….
49. Be that as it may, even where the intervention of the National Police Service is required, such intervention is merely to provide reasonable security to facilitate the execution, enforcement and/or implementation of the court order and not to undertake the Execution by themselves…”
16. This Court is satisfied that the Applicants have established the need for police assistance in the exercise of its statutory power of sale, and is therefore entitled to the orders sought.
17. In the result, the Notice of Motion dated 26th June 2025 is allowed on the following terms: -
i. The Respondent, Rudufu Limited, its agents, employees or any person acting on its behalf are hereby ordered forthwith permit the Applicant’s Auctioneer, Dennis K. Mwangi T/A Kenya Shield Auctioneers, and the successful purchaser to gain access to the charged premises known as Land Reference No. 209/3656 (IR No. 9448), Laibon Hotel, South B Area, Nairobi County, in connection with the auction sale conducted on 28th February 2025.
ii. The Officer-in-Charge of Industrial Area Police Station, or such other officer designated by the National Police Service, is hereby directed to provide a police escort, security, and supervision to ensure public order and the peaceful discharge of the exercise.
18. On Costs, Section 27 of the Civil Procedure Act, provides that costs follow the event. It is the Respondent’s conduct that has occasioned the instant application. Consequently, the Appellant is thus entitled to costs.
19. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
11TH SEPTEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
N/A………………………..for the Appellant
N/A……………….…..... for the Respondent
'
a) The Court do issue breaking-in orders to enable the Auctioneer and/or the successful purchaser to gain access to the premises known as Land Reference No. 209/3656 (IR. No. 9448), Laibon Hotel, South B, Nairobi County, for purposes of inspection;
b) The Officer Commanding Industrial Area Police Station do provide police assistance and supervision in the execution of the said orders; and
c) Costs of the Application be borne by the Respondent.
2. The Application is supported by the Affidavit of Dennis K. Mwangi, the instructed Auctioneer, sworn on 26th June 2025.
3. The uncontested facts are that the Respondent, Rudufu Limited, is indebted to the Applicant in the sum of Kshs. 167,426,883.63, secured by a legal charge over the suit property. Following persistent default, the Applicant exercised its statutory power of sale under Section 96 of the Land Act, 2012.
4. Pursuant to instructions dated 30th January 2025, the Auctioneer issued the requisite statutory notices, advertised the sale, and successfully conducted a public auction on 28th February 2025, at which a purchaser emerged.
5. The Applicant contends that despite the lawful auction, the Respondent has continuously obstructed the Auctioneer and the purchaser from accessing the premises. The Auctioneer was unable, on at least eight occasions, to enter the premises to photograph or inspect the same before the auction. Even after the sale, the purchaser has been denied entry for inspection, frustrating the process of completing the transaction.
6. The Applicant further expresses apprehension that the Respondent is actively disposing of movable assets from the premises, thereby threatening to defeat the substratum of the charge and render the auction nugatory.
7. Notably, the Respondent has neither filed a replying affidavit nor submissions, despite service. The Application is therefore unopposed.
Analysis and Determination
8. Having considered the Application, the Supporting Affidavit, annexures thereto, and the submissions filed by learned counsel for the Applicant, I find that the only issue for determination is whether breaking-in and police assistance orders sought are merited.
9. Rule 9 of the Auctioneers Rules, 1997 provides that where there is a risk of resistance, intimidation, or breach of peace, an auctioneer or executing party may seek the assistance of the police. The application may be made ex parte or inter partes. For clarity, the provision of Rule 9 of the Auctioneers Rules 1997 provides as hereunder;
“9. Police assistance
(1) Where an auctioneer has reasonable cause to believe that—
(a) he may have to break the door of any premises where goods may be seized or repossessed; or
(b) he may be subject to resistance or intimidation by the debtor or other person; or
(c) a breach of the peace is likely as a result of seizure, repossession or attempted seizure or repossession of any property, the auctioneer shall request for police escort from the nearest police station in order to carry out his duties peacefully.
(2) An application under this rule shall be by motion by way of a miscellaneous application support by an affidavit and may be heard ex parte.
10. In the present case, the uncontested facts are that the Respondent, Rudufu Limited, is indebted to the Applicant in the sum of Kshs. 167,426,883.63, secured by a legal charge over the suit property. Following persistent default, the Applicant exercised its statutory power of sale under Section 96 of the Land Act, 2012.
11. Pursuant to instructions dated 30th January 2025, the Auctioneer issued the requisite statutory notices, advertised the sale, and successfully conducted a public auction on 28th February 2025, at which a purchaser emerged.
12. The Applicant contends that despite the lawful auction, the Respondent has continuously obstructed the Auctioneer and the purchaser from accessing the premises. It is deponed that the Auctioneer was unable, on at least eight occasions, to enter the premises to photograph or inspect the same before the auction.
13. The Applicant further expresses apprehension that the Respondent is actively disposing of movable assets from the premises, thereby threatening to defeat the substratum of the charge and render the auction nugatory.
14. The Respondent has neither filed a replying affidavit nor submissions, despite service as demonstrated in the affidavit of service dated 28th July 2025 and filed on the same day. The Application is therefore unopposed.
15. In Kang’ethe v Mumo ((Sued on behalf of John Mutisya Mumo)) [2022] KEELC 2434 (KLR).], the Court was clear that police intervention is permitted where necessary to facilitate peaceful execution and not to carry out the execution themselves. The Court emphasized that the role of the police is to ensure peace and prevent obstruction of court processes. The Court expressed itself as follows: -
“46. I beg to point out that decrees and/or orders, which are issued vide civil proceedings, are obliged to be executed by Licensed Auctioneers, Class B or where allowed Class A, in accordance with the Auctioneers Act, 1996 and the Rules made thereunder.
48. Nevertheless, where there is need and/or necessity for Police protection or, better still, assistance, the law provides a window and the executing officer is obliged to file an appropriate Application for consideration by the Court….
49. Be that as it may, even where the intervention of the National Police Service is required, such intervention is merely to provide reasonable security to facilitate the execution, enforcement and/or implementation of the court order and not to undertake the Execution by themselves…”
16. This Court is satisfied that the Applicants have established the need for police assistance in the exercise of its statutory power of sale, and is therefore entitled to the orders sought.
17. In the result, the Notice of Motion dated 26th June 2025 is allowed on the following terms: -
i. The Respondent, Rudufu Limited, its agents, employees or any person acting on its behalf are hereby ordered forthwith permit the Applicant’s Auctioneer, Dennis K. Mwangi T/A Kenya Shield Auctioneers, and the successful purchaser to gain access to the charged premises known as Land Reference No. 209/3656 (IR No. 9448), Laibon Hotel, South B Area, Nairobi County, in connection with the auction sale conducted on 28th February 2025.
ii. The Officer-in-Charge of Industrial Area Police Station, or such other officer designated by the National Police Service, is hereby directed to provide a police escort, security, and supervision to ensure public order and the peaceful discharge of the exercise.
18. On Costs, Section 27 of the Civil Procedure Act, provides that costs follow the event. It is the Respondent’s conduct that has occasioned the instant application. Consequently, the Appellant is thus entitled to costs.
19. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
11TH SEPTEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
N/A………………………..for the Appellant
N/A……………….…..... for the Respondent
'