1. I have carefully considered the Notice of Motion dated 19th June 2025, the Grounds of Opposition dated 27th June 2025, together with the written submissions tendered by both parties.
2. On the first prayer the Applicants seek leave for the firm of Taliti Collins Advocates to come on record for the 1st and 2nd Defendants/Applicants in place of the firm of Nchogu Omwanza and Nyasimi Advocates. This prayer is not opposed. In the circumstances, and there being no prejudice demonstrated, the Court finds merit in the request. Leave is accordingly granted, and Taliti Collins Advocates are hereby allowed to come on record for the 1st and 2nd Defendants/Applicants.
3. On the second prayer the Applicants further seek an order for stay of execution of the Decree issued herein pending taxation of the auctioneers’ fees. Their contention is that Icon Auctioneers, pursuant to a Proclamation Notice dated 12th June 2025, have demanded the sum of Kshs. 2,473,850.00, which sum has not been subjected to taxation. The Applicants argue that the figure is exorbitant and far exceeds the limits contemplated under the Auctioneers Rules and statutory framework. They nonetheless concede the existence of a valid decree.
4. Section 94 of the Civil Procedure Act envisages a situation where a decree may be executed before costs are determined. It provides:
‘Where the High Court considers it necessary that a decree passed in the exercise of its original civil jurisdiction should be executed before the amount of the costs incurred in the suit can be ascertained by taxation, the court may order that the decree shall be executed forthwith, except as to so much thereof as relates to the costs; and as to so much thereof as relates to the costs that the decree may be executed as soon as the amount of the costs shall be ascertained by taxation’.
5. In the absence of any other valid ground for stay, I find it just and equitable to limit the stay of execution to the enforcement of the disputed auctioneers’ charges only. The decretal sum, being undisputed, remains executable. Execution of the decree shall therefore proceed, save that enforcement of the auctioneers’ fees shall await taxation in accordance with Rule 55 of the Auctioneers Rules.
Disposition
6. In light of the foregoing, I make the following orders:
i. Leave is granted for the firm of Taliti Collins Advocates to come on record for the 1st and 2nd Defendants/Applicants in place of the firm of Nchogu Omwanza and Nyasimi Advocates.
ii. Execution of the decretal sum shall proceed forthwith.
iii. Enforcement of the auctioneers’ charges as demanded in the Proclamation Notice dated 12th June 2025 is hereby stayed pending taxation under Rule 55 of the Auctioneers Rules.
iv. Each party shall bear their own costs of the application
DATED, SIGNED AND DELIVERED AT NAIROBI
THIS 5th DAY OF MARCH 2026.
F. MUGAMBI
JUDGE
2. On the first prayer the Applicants seek leave for the firm of Taliti Collins Advocates to come on record for the 1st and 2nd Defendants/Applicants in place of the firm of Nchogu Omwanza and Nyasimi Advocates. This prayer is not opposed. In the circumstances, and there being no prejudice demonstrated, the Court finds merit in the request. Leave is accordingly granted, and Taliti Collins Advocates are hereby allowed to come on record for the 1st and 2nd Defendants/Applicants.
3. On the second prayer the Applicants further seek an order for stay of execution of the Decree issued herein pending taxation of the auctioneers’ fees. Their contention is that Icon Auctioneers, pursuant to a Proclamation Notice dated 12th June 2025, have demanded the sum of Kshs. 2,473,850.00, which sum has not been subjected to taxation. The Applicants argue that the figure is exorbitant and far exceeds the limits contemplated under the Auctioneers Rules and statutory framework. They nonetheless concede the existence of a valid decree.
4. Section 94 of the Civil Procedure Act envisages a situation where a decree may be executed before costs are determined. It provides:
‘Where the High Court considers it necessary that a decree passed in the exercise of its original civil jurisdiction should be executed before the amount of the costs incurred in the suit can be ascertained by taxation, the court may order that the decree shall be executed forthwith, except as to so much thereof as relates to the costs; and as to so much thereof as relates to the costs that the decree may be executed as soon as the amount of the costs shall be ascertained by taxation’.
5. In the absence of any other valid ground for stay, I find it just and equitable to limit the stay of execution to the enforcement of the disputed auctioneers’ charges only. The decretal sum, being undisputed, remains executable. Execution of the decree shall therefore proceed, save that enforcement of the auctioneers’ fees shall await taxation in accordance with Rule 55 of the Auctioneers Rules.
Disposition
6. In light of the foregoing, I make the following orders:
i. Leave is granted for the firm of Taliti Collins Advocates to come on record for the 1st and 2nd Defendants/Applicants in place of the firm of Nchogu Omwanza and Nyasimi Advocates.
ii. Execution of the decretal sum shall proceed forthwith.
iii. Enforcement of the auctioneers’ charges as demanded in the Proclamation Notice dated 12th June 2025 is hereby stayed pending taxation under Rule 55 of the Auctioneers Rules.
iv. Each party shall bear their own costs of the application
DATED, SIGNED AND DELIVERED AT NAIROBI
THIS 5th DAY OF MARCH 2026.
F. MUGAMBI
JUDGE