Vide a notice of motion dated 2 nd June 2026, the judgment debtor/applicant seeks the following prayers as against the decree holder/respondent:
1. Spent
2. Spent
3. That the court be pleased to set aside, quash and raise in whole the proclamation, attachment and/or intended sale of the proclaimed properties of the applicant as indicated in schedule of proclamation of attachment by Foresight Auctioneers dated 20 th June 2026
4. Spent
5. That the court be pleased to set aside the ruling issued adopting the certificate of taxation dated 5/3/26
6. That the judgment debtor/applicant be granted leave to file their reference out of time.
The application is grounded on an affidavit of Peter Waweru. The gist of the application is that the applicant reviewed their records and realized that the respondent never defended the suit as at the time when instructions were issued on 12 th may 2023, as judgment had already been delivered in Kakamega SCCC E075 of 2022. That unless the proclamation and attachment by Foresight Auctioneers are set aside and/or quashed, the judgment debtor/applicant is likely to suffer irreparable loss and damage. The applicant annexed to its affidavit in support of the application a letter dated 12/5/2023 issuing instructions to the respondent to defend Kakamega SCCC No. E075 of 2022 and a response by the respondent indicating that the matter had been concluded and was defended by a firm of M/s Balala & Co. Advocates. The applicant also annexed a judgment in Kakamega SCCC E075 of 2022 indicating the date of judgment as 22 nd November 2022.
The respondent opposed the application through a replying affidavit by Denis Onyimbo Onyinkwa. In his affidavit Mr. Onyinkwa has deposed that the bill of costs relating to this matter arose from Mumias SPMCC No. 140 of 2022 involving Lilian Akoth Omwanda v Kihima Gitari Alfayo and Another. The respondent however annexed to his affidavit a bill of costs with respect to Kakamega SCCC No E075 of 2022.
DETERMINATION
From the material placed before court there is no dispute that the respondent never defended suit in Kakamega SCCC No. E075 of 2022 as there was already a judgment on record when instructions were issued. The respondent appeared to have proceeded to have its costs assessed on the understanding that it had defended Kakamega SCCC No. E075 of 2022. The assertion that the bill arose from a different suit is not accurate as the bill annexed to the respondent’s replying affidavit relate to Kakamega SCCC No. E075 of 2022 and not for Mumias SPMCC No. 140 of 2022 as alleged in the replying affidavit.
The implication of all this is that the respondent may be guilty of unjust enrichment. This is because it intends to get a benefit in an unjust manner after admitting that the suit was defended by a different firm of advocates.
I find therefore that this is a fit case to exercise my discretion and set aside the proclamation attachment of the applicant’s goods as indicated in the proclamation of attachment by Foresight Auctioneers dated 26/6/26. The ruling adopting the certificate of taxation is equally set aside and the applicant be and is hereby granted leave to file a reference out of time. The applicant shall have costs of the application. The respondent to pay the auctioneers’ costs.
DATED, SIGNED AND DELIVERED
THIS 22 ND SEPTEMBER 2026.
D.O. ONYANGO
JUDGE
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1. Spent
2. Spent
3. That the court be pleased to set aside, quash and raise in whole the proclamation, attachment and/or intended sale of the proclaimed properties of the applicant as indicated in schedule of proclamation of attachment by Foresight Auctioneers dated 20 th June 2026
4. Spent
5. That the court be pleased to set aside the ruling issued adopting the certificate of taxation dated 5/3/26
6. That the judgment debtor/applicant be granted leave to file their reference out of time.
The application is grounded on an affidavit of Peter Waweru. The gist of the application is that the applicant reviewed their records and realized that the respondent never defended the suit as at the time when instructions were issued on 12 th may 2023, as judgment had already been delivered in Kakamega SCCC E075 of 2022. That unless the proclamation and attachment by Foresight Auctioneers are set aside and/or quashed, the judgment debtor/applicant is likely to suffer irreparable loss and damage. The applicant annexed to its affidavit in support of the application a letter dated 12/5/2023 issuing instructions to the respondent to defend Kakamega SCCC No. E075 of 2022 and a response by the respondent indicating that the matter had been concluded and was defended by a firm of M/s Balala & Co. Advocates. The applicant also annexed a judgment in Kakamega SCCC E075 of 2022 indicating the date of judgment as 22 nd November 2022.
The respondent opposed the application through a replying affidavit by Denis Onyimbo Onyinkwa. In his affidavit Mr. Onyinkwa has deposed that the bill of costs relating to this matter arose from Mumias SPMCC No. 140 of 2022 involving Lilian Akoth Omwanda v Kihima Gitari Alfayo and Another. The respondent however annexed to his affidavit a bill of costs with respect to Kakamega SCCC No E075 of 2022.
DETERMINATION
From the material placed before court there is no dispute that the respondent never defended suit in Kakamega SCCC No. E075 of 2022 as there was already a judgment on record when instructions were issued. The respondent appeared to have proceeded to have its costs assessed on the understanding that it had defended Kakamega SCCC No. E075 of 2022. The assertion that the bill arose from a different suit is not accurate as the bill annexed to the respondent’s replying affidavit relate to Kakamega SCCC No. E075 of 2022 and not for Mumias SPMCC No. 140 of 2022 as alleged in the replying affidavit.
The implication of all this is that the respondent may be guilty of unjust enrichment. This is because it intends to get a benefit in an unjust manner after admitting that the suit was defended by a different firm of advocates.
I find therefore that this is a fit case to exercise my discretion and set aside the proclamation attachment of the applicant’s goods as indicated in the proclamation of attachment by Foresight Auctioneers dated 26/6/26. The ruling adopting the certificate of taxation is equally set aside and the applicant be and is hereby granted leave to file a reference out of time. The applicant shall have costs of the application. The respondent to pay the auctioneers’ costs.
DATED, SIGNED AND DELIVERED
THIS 22 ND SEPTEMBER 2026.
D.O. ONYANGO
JUDGE
1