Introduction
1. Before the Court is the Notice of Motion dated 29th July 2025 by the Advocate/Applicant seeking, principally, orders prohibiting dealings with Land Reference Number 3734/231 (Original Number 3734/5/118), attachment of the property and its sale by public auction in execution of the decree herein.
2. The application is founded on the Applicant's case that judgment was entered in his favour on 5th June 2025 for Kshs. 5,302,660/=, together with interest at 14% per annum and costs of Kshs. 20,000/=. A decree was subsequently issued on 25th July 2025. The Applicant states that the decretal sum remains unpaid despite demand and that the Respondent owns the property sought to be attached.
3. The application is unopposed.
Analysis and Determination
4. I have considered the application and its supporting documents and, in my view, the following issues arise for determination:
a) Whether there is an executable decree;
b) Whether the subject property has been shown to belong to the Respondent; and
c) Whether the orders of prohibition, attachment and sale should issue.
Whether there is an executable decree
5. There is no controversy regarding the existence of the decree. The decree exhibited by the Applicant records judgment in its favour for Kshs. 5,302,660/=, together with interest at 14% per annum and costs of Kshs. 20,000/=. It was issued on 25th July 2025.
6. Section 38 of the Civil Procedure Act empowers the Court to enforce a decree by, among other modes, attachment and sale of property. Section 44(1) makes property belonging to a judgment-debtor liable to attachment and sale in execution, subject to the statutory exemptions.
7. I am therefore satisfied that the Applicant has an executable decree and is entitled to pursue lawful execution. That, however, does not by itself entitle the Applicant to attach any property it identifies. The property must first be shown to belong to the judgment-debtor.
Whether the subject property has been shown to belong to the Respondent
8. The Applicant identifies the property sought to be attached as Land Reference Number 3734/231 (Original Number 3734/5/118). It contends that investigations established the Respondent to be its registered proprietor and relies on the exhibited title in support of that assertion.
9. The title exhibited, however, does not establish that proposition. The entries appearing on the title include a transfer to Rukundo Exporters Limited.
10. The judgment-debtor named in the decree is Rukundo Limited. The entity appearing in the title is Rukundo Exporters Limited. No certificate of change of name, certificate of incorporation, current official search or other evidence has been presented to demonstrate that the two entities are one and the same.
11. It is settled law that a company is a separate legal person distinct from another company – see Mabachi & Another v Nurturn Bates Limited, Civil Appeal No. 247 of 2005 [2013] eKLR. The Court cannot, without evidence, equate two differently constituted corporate entities merely because their names bear some similarity.
12. More importantly, the Applicant has not placed before the Court a current official search showing the present registered proprietor of the property. This is significant because the title exhibited contains several historical entries and charges, and therefore does not, without current confirmation, establish the present status of the property.
13. The requirement that the property belong to the judgment-debtor is not a mere procedural formality. Section 44(1) of the Civil Procedure Act expressly makes property belonging to the judgment-debtor liable to attachment. The Court must therefore be satisfied, before ordering attachment, that the property falls within that statutory category.
14. Similarly, Order 22 Rule 48 provides for attachment of immovable property through a prohibitory order against the judgment-debtor, with the attachment becoming complete upon registration against the title. The rule consequently presupposes that the property is property of the judgment-debtor.
15. In the circumstances, I am unable to find, on the evidence before me, that Land Reference Number 3734/231 is presently registered in the name of Rukundo Limited.
16. Consequently, although the Applicant has established the existence of an executable decree, it has not established that Land Reference Number 3734/231 (Original Number 3734/5/118) is presently owned by the judgment-debtor, Rukundo Limited. The prayers for prohibition, attachment and sale therefore cannot properly issue.
17. Accordingly, the Notice of Motion dated 29th July 2025 is dismissed.
18. There shall be no order as to costs since the Respondent did not participate in the present proceedings.
19. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17TH DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent
1. Before the Court is the Notice of Motion dated 29th July 2025 by the Advocate/Applicant seeking, principally, orders prohibiting dealings with Land Reference Number 3734/231 (Original Number 3734/5/118), attachment of the property and its sale by public auction in execution of the decree herein.
2. The application is founded on the Applicant's case that judgment was entered in his favour on 5th June 2025 for Kshs. 5,302,660/=, together with interest at 14% per annum and costs of Kshs. 20,000/=. A decree was subsequently issued on 25th July 2025. The Applicant states that the decretal sum remains unpaid despite demand and that the Respondent owns the property sought to be attached.
3. The application is unopposed.
Analysis and Determination
4. I have considered the application and its supporting documents and, in my view, the following issues arise for determination:
a) Whether there is an executable decree;
b) Whether the subject property has been shown to belong to the Respondent; and
c) Whether the orders of prohibition, attachment and sale should issue.
Whether there is an executable decree
5. There is no controversy regarding the existence of the decree. The decree exhibited by the Applicant records judgment in its favour for Kshs. 5,302,660/=, together with interest at 14% per annum and costs of Kshs. 20,000/=. It was issued on 25th July 2025.
6. Section 38 of the Civil Procedure Act empowers the Court to enforce a decree by, among other modes, attachment and sale of property. Section 44(1) makes property belonging to a judgment-debtor liable to attachment and sale in execution, subject to the statutory exemptions.
7. I am therefore satisfied that the Applicant has an executable decree and is entitled to pursue lawful execution. That, however, does not by itself entitle the Applicant to attach any property it identifies. The property must first be shown to belong to the judgment-debtor.
Whether the subject property has been shown to belong to the Respondent
8. The Applicant identifies the property sought to be attached as Land Reference Number 3734/231 (Original Number 3734/5/118). It contends that investigations established the Respondent to be its registered proprietor and relies on the exhibited title in support of that assertion.
9. The title exhibited, however, does not establish that proposition. The entries appearing on the title include a transfer to Rukundo Exporters Limited.
10. The judgment-debtor named in the decree is Rukundo Limited. The entity appearing in the title is Rukundo Exporters Limited. No certificate of change of name, certificate of incorporation, current official search or other evidence has been presented to demonstrate that the two entities are one and the same.
11. It is settled law that a company is a separate legal person distinct from another company – see Mabachi & Another v Nurturn Bates Limited, Civil Appeal No. 247 of 2005 [2013] eKLR. The Court cannot, without evidence, equate two differently constituted corporate entities merely because their names bear some similarity.
12. More importantly, the Applicant has not placed before the Court a current official search showing the present registered proprietor of the property. This is significant because the title exhibited contains several historical entries and charges, and therefore does not, without current confirmation, establish the present status of the property.
13. The requirement that the property belong to the judgment-debtor is not a mere procedural formality. Section 44(1) of the Civil Procedure Act expressly makes property belonging to the judgment-debtor liable to attachment. The Court must therefore be satisfied, before ordering attachment, that the property falls within that statutory category.
14. Similarly, Order 22 Rule 48 provides for attachment of immovable property through a prohibitory order against the judgment-debtor, with the attachment becoming complete upon registration against the title. The rule consequently presupposes that the property is property of the judgment-debtor.
15. In the circumstances, I am unable to find, on the evidence before me, that Land Reference Number 3734/231 is presently registered in the name of Rukundo Limited.
16. Consequently, although the Applicant has established the existence of an executable decree, it has not established that Land Reference Number 3734/231 (Original Number 3734/5/118) is presently owned by the judgment-debtor, Rukundo Limited. The prayers for prohibition, attachment and sale therefore cannot properly issue.
17. Accordingly, the Notice of Motion dated 29th July 2025 is dismissed.
18. There shall be no order as to costs since the Respondent did not participate in the present proceedings.
19. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17TH DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent