Introduction
1. Before this Court for determination is the Notice of Motion dated 4th April 2025, filed by the Plaintiffs/Applicants, Francis Mwangi Njuguna and Margaret Wangechi Njuguna, seeking orders for police assistance in the execution of a judgment and decree issued in this suit, specifically to secure vacant possession of Title Number Nairobi/Block 72/1026 (House No. C4, Akiba Estate, Langata), against the Defendant/Respondent herein.
2. The Application is supported by the affidavit sworn on 4th April 2025 by Nganga Mburu, an auctioneer, duly instructed by the Plaintiffs herein, and is based on the grounds that: -
i. The Plaintiffs are the registered proprietors of the suit property, having purchased it at a public auction in January 2004.
ii. Following the auction, transfer of the property to the Plaintiffs was effected on 24th January 2007.
iii. The Defendant filed previous suits attempting to challenge the transfer but failed. Suit No. 62 of 2004 was dismissed, and no appeal was filed against that dismissal.
iv. In the present suit (Suit No. 82 of 2009), the Court issued an order on 19th October 2009, requiring the Defendant to vacate the property. This order was later set aside by the Court of Appeal on 24th April 2020, but an injunction restraining the Defendant from wasting or dealing with the land was upheld.
v. On 26th July 2022, this Court issued judgment in favour of the Plaintiffs for vacant possession. A partial decree was issued on 12th February 2025.
vi. The Defendant has failed or refused to vacate the property despite court orders
3. The Applicant contends that the Defendant/Respondent remains in occupation in defiance of court orders, amounting to contempt, and therefore, Police assistance is necessary to maintain peace and order during the eviction and to prevent resistance or breach of the peace.
4. The application proceeded by way of written submissions. The Applicants filed their joint submissions dated 21st May 2025. No submissions were filed by the Respondent.
5. In their submissions, the Applicants have relied, among other provisions, on Rule 9(1) of the Auctioneers Rules, 1997, which permits an auctioneer to seek police assistance where there is a likelihood of resistance or breach of the peace during execution. They have also cited Order 22 Rule 29(1) of the Civil Procedure Rules, which allows the use of reasonable force, including breaking open doors, when necessary to enforce an order for possession. In support of these arguments, the Applicants have further cited the decision in Stephen Maina Kimanga & 4 Others v Lucy Waithira Mwangi & 2 Others [2015] eKLR.
6. The Applicants, in their submissions, have cited, among others, Rule 9(1) of the Auctioneers Rules, 1997, which allows an auctioneer to seek police escort where there is a likelihood of resistance or breach of peace during execution, Order 22 Rule 29(1) of the Civil Procedure Rules, which permits the use of force, including breaking open doors, when necessary to execute an order of possession. In support of the arguments, the Applicants also cites among others, the decision in the case of Stephen Maina Kimanga & 4 others v Lucy Waithira Mwangi & 2 others [2015] eKLR.
7. Despite being served with both the application and submissions as evidenced in the return of service filed herein on 10th April 2025, the Respondent did not participate in these proceedings by either filing a response or submissions. The Court will therefore solely proceed on the basis of the submissions filed by the Plaintiff/Applicant.
Analysis and Determination
8. Upon considering the application, the supporting affidavit, and submissions filed by the Plaintiffs, the Court finds that the only issue for determination is whether the Preliminary Objection is merited, and if yes, whether the application for police assistance during execution of the decree is 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, Applicants have established that they are the legal proprietors of the suit property and have obtained a judgment for vacant possession, but the Defendant has persistently refused to comply with court orders for over 20 years, despite the property being lawfully transferred to the Plaintiffs. The history of the dispute and the Defendant's conduct justify the Applicants' fears of resistance during eviction.
11. 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…”
12. This Court is satisfied that the Applicants have established the need for police assistance in the execution of the decree, and is therefore entitled to the orders sought. Accordingly, the Court makes the following orders: -
i. The Notice of Motion dated 4th April 2025 is allowed.
ii. The Officer Commanding Station (OCS), Langata Police Station, or such other officer designated by the National Police Service, shall provide security and police assistance during the execution of the eviction to maintain peace and order, on house No C4, erected on Title Number Nairobi /Block 72/1026 in Ngei Phase II Estate, Langata, Nairobi pursuant to a decree issued in this suit on 26th July, 2022.
13. On Costs, Section 27 of the Civil Procedure Act, provides that costs follow the event. The Defendant has occasioned the need for this application by refusing to vacate the premises. The Plaintiffs are thus entitled to costs.
14. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
17TH DAY OF JULY 2025
ADO MOSES
JUDGE
In the Presence of
Moses C/A
Ms. Mwangi h/b for Tom Macharia…………for the Applicant
N/A…………………. ……..for Respondent
1. Before this Court for determination is the Notice of Motion dated 4th April 2025, filed by the Plaintiffs/Applicants, Francis Mwangi Njuguna and Margaret Wangechi Njuguna, seeking orders for police assistance in the execution of a judgment and decree issued in this suit, specifically to secure vacant possession of Title Number Nairobi/Block 72/1026 (House No. C4, Akiba Estate, Langata), against the Defendant/Respondent herein.
2. The Application is supported by the affidavit sworn on 4th April 2025 by Nganga Mburu, an auctioneer, duly instructed by the Plaintiffs herein, and is based on the grounds that: -
i. The Plaintiffs are the registered proprietors of the suit property, having purchased it at a public auction in January 2004.
ii. Following the auction, transfer of the property to the Plaintiffs was effected on 24th January 2007.
iii. The Defendant filed previous suits attempting to challenge the transfer but failed. Suit No. 62 of 2004 was dismissed, and no appeal was filed against that dismissal.
iv. In the present suit (Suit No. 82 of 2009), the Court issued an order on 19th October 2009, requiring the Defendant to vacate the property. This order was later set aside by the Court of Appeal on 24th April 2020, but an injunction restraining the Defendant from wasting or dealing with the land was upheld.
v. On 26th July 2022, this Court issued judgment in favour of the Plaintiffs for vacant possession. A partial decree was issued on 12th February 2025.
vi. The Defendant has failed or refused to vacate the property despite court orders
3. The Applicant contends that the Defendant/Respondent remains in occupation in defiance of court orders, amounting to contempt, and therefore, Police assistance is necessary to maintain peace and order during the eviction and to prevent resistance or breach of the peace.
4. The application proceeded by way of written submissions. The Applicants filed their joint submissions dated 21st May 2025. No submissions were filed by the Respondent.
5. In their submissions, the Applicants have relied, among other provisions, on Rule 9(1) of the Auctioneers Rules, 1997, which permits an auctioneer to seek police assistance where there is a likelihood of resistance or breach of the peace during execution. They have also cited Order 22 Rule 29(1) of the Civil Procedure Rules, which allows the use of reasonable force, including breaking open doors, when necessary to enforce an order for possession. In support of these arguments, the Applicants have further cited the decision in Stephen Maina Kimanga & 4 Others v Lucy Waithira Mwangi & 2 Others [2015] eKLR.
6. The Applicants, in their submissions, have cited, among others, Rule 9(1) of the Auctioneers Rules, 1997, which allows an auctioneer to seek police escort where there is a likelihood of resistance or breach of peace during execution, Order 22 Rule 29(1) of the Civil Procedure Rules, which permits the use of force, including breaking open doors, when necessary to execute an order of possession. In support of the arguments, the Applicants also cites among others, the decision in the case of Stephen Maina Kimanga & 4 others v Lucy Waithira Mwangi & 2 others [2015] eKLR.
7. Despite being served with both the application and submissions as evidenced in the return of service filed herein on 10th April 2025, the Respondent did not participate in these proceedings by either filing a response or submissions. The Court will therefore solely proceed on the basis of the submissions filed by the Plaintiff/Applicant.
Analysis and Determination
8. Upon considering the application, the supporting affidavit, and submissions filed by the Plaintiffs, the Court finds that the only issue for determination is whether the Preliminary Objection is merited, and if yes, whether the application for police assistance during execution of the decree is 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, Applicants have established that they are the legal proprietors of the suit property and have obtained a judgment for vacant possession, but the Defendant has persistently refused to comply with court orders for over 20 years, despite the property being lawfully transferred to the Plaintiffs. The history of the dispute and the Defendant's conduct justify the Applicants' fears of resistance during eviction.
11. 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…”
12. This Court is satisfied that the Applicants have established the need for police assistance in the execution of the decree, and is therefore entitled to the orders sought. Accordingly, the Court makes the following orders: -
i. The Notice of Motion dated 4th April 2025 is allowed.
ii. The Officer Commanding Station (OCS), Langata Police Station, or such other officer designated by the National Police Service, shall provide security and police assistance during the execution of the eviction to maintain peace and order, on house No C4, erected on Title Number Nairobi /Block 72/1026 in Ngei Phase II Estate, Langata, Nairobi pursuant to a decree issued in this suit on 26th July, 2022.
13. On Costs, Section 27 of the Civil Procedure Act, provides that costs follow the event. The Defendant has occasioned the need for this application by refusing to vacate the premises. The Plaintiffs are thus entitled to costs.
14. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
17TH DAY OF JULY 2025
ADO MOSES
JUDGE
In the Presence of
Moses C/A
Ms. Mwangi h/b for Tom Macharia…………for the Applicant
N/A…………………. ……..for Respondent