1. The Applicant’s motion dated 22nd April, 2026 is expressed to be brought under Article 159 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, Order 48 Rule (1) and (2), Order 22 Rule 49 of the Civil Procedure Rules and all other enabling provisions of the law and seeks the following orders:
1. THAT, in the first instance the application be certified urgent and be heard ex-parte as it seeks orders for execution of the decree herein requiring interim orders in terms of prayer two (2) below without notification/alerting the Respondent in view of other orders sought below.
2. THAT, an order of inhibition and/or prohibitory do issue against the Respondent in dealing with and/or interfering with property known as Plot LR No. 24880- Kilifi - Title 43510 – Plot No. A87 in any manner whatsoever pending issuance of prayer three hereinbelow.
3. THAT, the nature of this execution application does not require service upon the Respondent in the circumstances service of the application should be dispensed.
4. THAT, upon issuance of the prohibitory/inhibition order and registration of same on Plot LR No. 24880 – Kilifi – Title 43510 – Plot No. A87 same be deemed as an attachment of the property pursuant provisions of Order 22 Rule 48 Civil Procedure Rules.
5. THAT, an order and warrants of sale of Plot LR No. 24880 – Kilifi – Title 43510 – Plot No. A87 be issued to Double M Auctioneers for sale of the said property through public auction.
6. Such other further orders as court may deem fit to grant.
2. The grounds upon which the application is premised are in precis that the Applicant, an Advocate of this Court, rendered legal services to the Respondent but the Respondent failed and/or neglected to settle the legal fees due, thereby necessitating taxation proceedings.
3. The Applicant avers that following taxation of the Advocate – Client bill of costs, a certificate of taxation and a decree were duly issued in his favour. Despite service and demand, the Respondent has allegedly failed, refused and/or neglected to satisfy the taxed costs and the decree arising therefrom.
4. The Applicant further contends that, having served as a director and chairman of the Respondent’s board until the year 2024, he is conversant with the Respondent’s financial position and believes that the Respondent is technically insolvent and unable to meet its financial obligations as they fall due.
5. He avers that the Respondent has closed several of its branch offices, that movable assets in the operational branches have been attached by third parties, and that its bank accounts have similarly been subjected to garnishee proceedings by other creditors.
6. It is the Applicant’s case that, in view of the foregoing circumstances, the only effective mode of execution available for the recovery of the decretal amount is through attachment and sale of the Respondent’s immovable property by way of a prohibitory and/or inhibition order. The Applicant further asserts that the Respondent is in the process of disposing of its immovable properties and that unless the orders sought are granted, he risks being denied the fruits of his decree, thereby rendering the intended execution process nugatory.
7. The application is supported by the affidavit of Julius Orenge sworn on 22nd April, 2026. The deponent avers that he is an Advocate of the High Court of Kenya and the Applicant herein. He deposes that he rendered professional legal services to the Respondent in various matters but that the Respondent refused and/or neglected to settle his legal fees, thereby necessitating taxation proceedings.
8. The deponent further avers that following taxation, a certificate of taxation and a decree were issued in his favour. He states that despite the issuance of the said certificate and decree, the Respondent has failed and/or neglected to satisfy the taxed costs.
9. It is deposed that the Applicant previously served as a director and chairman of the Respondent’s board until the year 2024 and, by virtue thereof, has personal knowledge of the Respondent’s financial position. He avers that the Respondent is presently technically insolvent and unable to pay its debts and claims as they fall due.
10. The deponent further states that the Respondent’s movable assets have been attached by third parties and that its bank accounts have been subject to garnishee proceedings, thereby rendering execution of the decree through the ordinary modes of execution impracticable.
11. The Applicant avers that he has personal knowledge that the Respondent is in the process of disposing of its immovable properties. He contends that, in the circumstances, the only effective means of executing the decree is through attachment and sale of the Respondent’s immovable property by way of a prohibitory and/or inhibition order pursuant to the provisions of the Civil Procedure Rules.
12. In support of the application, the deponent has annexed a copy of the certificate of search relating to the property sought to be attached and sold, marked “JO1”, and a copy of the decree, marked “JO2”.
13. The deponent asserts that unless the orders sought are granted, he will be deprived of the fruits of his decree and the intended execution process will be rendered nugatory. He further states that, save where otherwise indicated, the matters deposed to are within his personal knowledge and are also derived from the advocate’s file.
14. The application together with the hearing notice was duly served upon the Respondent to the satisfaction of the Court. An affidavit of service sworn by the process server, Kennedy Manyara, on 21st May, 2026 was subsequently filed as proof of service.
15. Despite being duly served, the Respondent neither filed a response to the application nor attended court on 10th June, 2026 when the motion came up for hearing. Consequently, the application remains unopposed.
16. When the matter was placed before the court for directions on the application on 23rd April, 2026, my brother Mabeya J. granted prayers 2 and 3 of the motion and further directed that service be effected upon the Respondent.
17. When the matter was placed before the Court on 12th May, 2026, my brother directed that the the same be placed before me for hearing of the other prayers. The file was placed before me on 10th June, 2026 and the application proceeded. Notably, despite being served to the satisfaction of the court, the Respondent did not file any response.
18. The court has carefully considered the application, the grounds in support thereof, the supporting affidavit together with the annexures, and the fact that the application is unopposed. The issues that arise for determination are, in the court’s view, as follows:
a. Whether the Applicant has established a proper basis for execution against the Respondent’s immovable property.
b. Whether the statutory requirements governing attachment of immovable property have been satisfied.
c. Whether the court should issue warrants of sale in respect of the attached property.
19. I will proceed to address the three issues sequentially.
20. The first issue for determination is whether the Applicant has established a proper basis for execution against the Respondent’s immovable property.
21. The right of a successful litigant to enjoy the fruits of a judgement is a fundamental principle underpinning the law of civil procedure. Once a decree has been lawfully issued, the decree-holder is entitled to invoke the execution mechanisms provided under the Civil Procedure Act and the Civil Procedure Rules to realize the fruits of that decree.
22. Section 38 of the Civil Procedure Act empowers the court, upon the application of the decree-holder, to order execution of a decree by, among other modes, attachment and sale of any property belonging to the judgement-debtor. That power is, however, to be exercised in accordance with the procedure prescribed under the Civil Procedure Rules.
23. In the present case, the Applicant has exhibited a decree arising from taxed Advocate-Client costs. There is no material before the court to suggest that the decree has been stayed, set aside or otherwise satisfied.
24. Equally, despite having been duly served with both the application and the hearing notice, the Respondent neither filed a replying affidavit nor any grounds of opposition to controvert the Applicant’s depositions. The factual assertions contained in the supporting affidavit therefore remain unchallenged.
25. Although an unopposed application does not automatically succeed, the court is entitled to accept uncontroverted evidence where it is credible and demonstrates compliance with the law.
26. The Applicant has further deposed that he previously served as a director and chairman of the Respondent’s board and is therefore personally aware of its financial position.
27. He has stated that the Respondent has become technically insolvent, that its movable assets have been attached by third parties, that its bank accounts have been subjected to garnishee proceedings and that it is in the process of disposing of its immovable assets.
28. These depositions have not been rebutted. They provide a reasonable explanation why the Applicant has elected to pursue execution against immovable property rather than through attachment of movable assets or garnishee proceedings.
29. The law does not require a decree-holder to exhaust one mode of execution before resorting to another. Provided the chosen mode is recognized by law and the prescribed procedure is followed, a decree-holder is entitled to pursue the mode that is reasonably calculated to realize the decretal sum.
30. The second issue is whether the statutory requirements governing attachment of immovable property have been satisfied.
31. Order 22 Rule 48 of the Civil Procedure Rules prescribes the procedure for the attachment of immovable property in execution of a decree.
32. The Rule requires that such attachment be effected by the issuance of a prohibitory order restraining the judgement-debtor from transferring, charging or otherwise dealing with the property and prohibiting all persons from acquiring any interest therein through such dealings.
33. The purpose of the prohibitory order is to preserve the property pending the execution process and to ensure that the judgement-debtor does not defeat the decree by disposing of or encumbering the property.
34. Order 22 Rule 49 further requires that a copy of the prohibitory order be served upon the judgement-debtor and, where the property is registered, that the order be transmitted to the appropriate land registry for registration against the title.
35. Registration of the prohibitory order serves to notify third parties of the subsisting attachment and preserves the property from any dealings that may prejudice the decree-holder’s right to realize the fruits of the decree through execution.
36. The record shows that when the application first came before the court, Mabeya J. granted the prohibitory orders sought in prayers 2 and 3 and directed that the Respondent be served. The Applicant thereafter effected service upon the Respondent, as evidenced by the affidavit of service on record.
37. Consequently, the Respondent was afforded an opportunity to challenge the intended execution but elected not to do so. The requirements of procedural fairness and the rules governing attachment of immovable property have therefore been fully complied with.
38. The Applicant has also annexed an official search demonstrating that the property known as LR No. 24880, Kilifi, Title No. 43510, Plot No. A87 is registered in the Respondent’s name.
39. Section 44(1) of the Civil Procedure Act provides that all property belonging to a judgment-debtor, whether movable or immovable, is liable to attachment and sale in execution of a decree unless it falls within one of the statutory exemptions.
40. There is no evidence before the Court that LR No. 24880 – Kilifi – Title No. 43510 – Plot No. A87 falls within any of the exempt categories, and it is therefore liable to attachment and sale in execution of the decree. The court is therefore satisfied that the property constitutes attachable property capable of being sold in execution of the decree.
41. The remaining issue is whether the court should issue warrants of sale in respect of the attached property.
42. Having lawfully attached the Respondent’s immovable property through a prohibitory order issued pursuant to Order 22 Rules 48 and 49 of the Civil Procedure Rules, the court is empowered to direct that the attached property be sold in execution of the decree in accordance with the provisions governing judicial sales under Order 22 of the Civil Procedure Rules.
43. The Applicant has demonstrated the existence of an unsatisfied decree, the attachment of the property, the Respondent’s ownership thereof, and due service of the execution proceedings. No legal or factual impediment has been placed before the court to justify withholding the next stage of execution.
44. The court is mindful that the sale of immovable property is a serious step, since it results in the compulsory deprivation of proprietary rights. For that reason, the Civil Procedure Rules prescribe elaborate safeguards intended to ensure fairness to the judgement-debtor.
45. In the present case, those safeguards have been observed. The Respondent has had notice of the execution proceedings and has chosen not to contest them. The court is therefore satisfied that the Applicant has established sufficient cause for the issuance of warrants of sale.
46. Accordingly, the court finds that the application dated 22nd April, 2026 is meritorious. The attachment of LR No. 24880 – Kilifi – Title No. 43510 – Plot No. A87 having already been effected through the prohibitory order previously issued, the court hereby authorises the next stage of execution.
47. Warrants of sale shall issue to Double M. Auctioneers to sell the said property by public auction in accordance with the provisions of the Civil Procedure Act, the Civil Procedure Rules and all other applicable law, the proceeds thereof to be applied towards satisfaction of the decretal amount together with the costs of execution.
48. Costs of the application, assessed at Ksh.4,000/- shall be borne by the Respondent.
49. This file is hereby closed.
DELIVERED (virtually), DATED & SIGNED this 6th day of August, 2026.
JOE M. OMIDO.
JUDGE
APPLICANT: Ms. Achieng.
RESPONDENT: No appearance.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
1. THAT, in the first instance the application be certified urgent and be heard ex-parte as it seeks orders for execution of the decree herein requiring interim orders in terms of prayer two (2) below without notification/alerting the Respondent in view of other orders sought below.
2. THAT, an order of inhibition and/or prohibitory do issue against the Respondent in dealing with and/or interfering with property known as Plot LR No. 24880- Kilifi - Title 43510 – Plot No. A87 in any manner whatsoever pending issuance of prayer three hereinbelow.
3. THAT, the nature of this execution application does not require service upon the Respondent in the circumstances service of the application should be dispensed.
4. THAT, upon issuance of the prohibitory/inhibition order and registration of same on Plot LR No. 24880 – Kilifi – Title 43510 – Plot No. A87 same be deemed as an attachment of the property pursuant provisions of Order 22 Rule 48 Civil Procedure Rules.
5. THAT, an order and warrants of sale of Plot LR No. 24880 – Kilifi – Title 43510 – Plot No. A87 be issued to Double M Auctioneers for sale of the said property through public auction.
6. Such other further orders as court may deem fit to grant.
2. The grounds upon which the application is premised are in precis that the Applicant, an Advocate of this Court, rendered legal services to the Respondent but the Respondent failed and/or neglected to settle the legal fees due, thereby necessitating taxation proceedings.
3. The Applicant avers that following taxation of the Advocate – Client bill of costs, a certificate of taxation and a decree were duly issued in his favour. Despite service and demand, the Respondent has allegedly failed, refused and/or neglected to satisfy the taxed costs and the decree arising therefrom.
4. The Applicant further contends that, having served as a director and chairman of the Respondent’s board until the year 2024, he is conversant with the Respondent’s financial position and believes that the Respondent is technically insolvent and unable to meet its financial obligations as they fall due.
5. He avers that the Respondent has closed several of its branch offices, that movable assets in the operational branches have been attached by third parties, and that its bank accounts have similarly been subjected to garnishee proceedings by other creditors.
6. It is the Applicant’s case that, in view of the foregoing circumstances, the only effective mode of execution available for the recovery of the decretal amount is through attachment and sale of the Respondent’s immovable property by way of a prohibitory and/or inhibition order. The Applicant further asserts that the Respondent is in the process of disposing of its immovable properties and that unless the orders sought are granted, he risks being denied the fruits of his decree, thereby rendering the intended execution process nugatory.
7. The application is supported by the affidavit of Julius Orenge sworn on 22nd April, 2026. The deponent avers that he is an Advocate of the High Court of Kenya and the Applicant herein. He deposes that he rendered professional legal services to the Respondent in various matters but that the Respondent refused and/or neglected to settle his legal fees, thereby necessitating taxation proceedings.
8. The deponent further avers that following taxation, a certificate of taxation and a decree were issued in his favour. He states that despite the issuance of the said certificate and decree, the Respondent has failed and/or neglected to satisfy the taxed costs.
9. It is deposed that the Applicant previously served as a director and chairman of the Respondent’s board until the year 2024 and, by virtue thereof, has personal knowledge of the Respondent’s financial position. He avers that the Respondent is presently technically insolvent and unable to pay its debts and claims as they fall due.
10. The deponent further states that the Respondent’s movable assets have been attached by third parties and that its bank accounts have been subject to garnishee proceedings, thereby rendering execution of the decree through the ordinary modes of execution impracticable.
11. The Applicant avers that he has personal knowledge that the Respondent is in the process of disposing of its immovable properties. He contends that, in the circumstances, the only effective means of executing the decree is through attachment and sale of the Respondent’s immovable property by way of a prohibitory and/or inhibition order pursuant to the provisions of the Civil Procedure Rules.
12. In support of the application, the deponent has annexed a copy of the certificate of search relating to the property sought to be attached and sold, marked “JO1”, and a copy of the decree, marked “JO2”.
13. The deponent asserts that unless the orders sought are granted, he will be deprived of the fruits of his decree and the intended execution process will be rendered nugatory. He further states that, save where otherwise indicated, the matters deposed to are within his personal knowledge and are also derived from the advocate’s file.
14. The application together with the hearing notice was duly served upon the Respondent to the satisfaction of the Court. An affidavit of service sworn by the process server, Kennedy Manyara, on 21st May, 2026 was subsequently filed as proof of service.
15. Despite being duly served, the Respondent neither filed a response to the application nor attended court on 10th June, 2026 when the motion came up for hearing. Consequently, the application remains unopposed.
16. When the matter was placed before the court for directions on the application on 23rd April, 2026, my brother Mabeya J. granted prayers 2 and 3 of the motion and further directed that service be effected upon the Respondent.
17. When the matter was placed before the Court on 12th May, 2026, my brother directed that the the same be placed before me for hearing of the other prayers. The file was placed before me on 10th June, 2026 and the application proceeded. Notably, despite being served to the satisfaction of the court, the Respondent did not file any response.
18. The court has carefully considered the application, the grounds in support thereof, the supporting affidavit together with the annexures, and the fact that the application is unopposed. The issues that arise for determination are, in the court’s view, as follows:
a. Whether the Applicant has established a proper basis for execution against the Respondent’s immovable property.
b. Whether the statutory requirements governing attachment of immovable property have been satisfied.
c. Whether the court should issue warrants of sale in respect of the attached property.
19. I will proceed to address the three issues sequentially.
20. The first issue for determination is whether the Applicant has established a proper basis for execution against the Respondent’s immovable property.
21. The right of a successful litigant to enjoy the fruits of a judgement is a fundamental principle underpinning the law of civil procedure. Once a decree has been lawfully issued, the decree-holder is entitled to invoke the execution mechanisms provided under the Civil Procedure Act and the Civil Procedure Rules to realize the fruits of that decree.
22. Section 38 of the Civil Procedure Act empowers the court, upon the application of the decree-holder, to order execution of a decree by, among other modes, attachment and sale of any property belonging to the judgement-debtor. That power is, however, to be exercised in accordance with the procedure prescribed under the Civil Procedure Rules.
23. In the present case, the Applicant has exhibited a decree arising from taxed Advocate-Client costs. There is no material before the court to suggest that the decree has been stayed, set aside or otherwise satisfied.
24. Equally, despite having been duly served with both the application and the hearing notice, the Respondent neither filed a replying affidavit nor any grounds of opposition to controvert the Applicant’s depositions. The factual assertions contained in the supporting affidavit therefore remain unchallenged.
25. Although an unopposed application does not automatically succeed, the court is entitled to accept uncontroverted evidence where it is credible and demonstrates compliance with the law.
26. The Applicant has further deposed that he previously served as a director and chairman of the Respondent’s board and is therefore personally aware of its financial position.
27. He has stated that the Respondent has become technically insolvent, that its movable assets have been attached by third parties, that its bank accounts have been subjected to garnishee proceedings and that it is in the process of disposing of its immovable assets.
28. These depositions have not been rebutted. They provide a reasonable explanation why the Applicant has elected to pursue execution against immovable property rather than through attachment of movable assets or garnishee proceedings.
29. The law does not require a decree-holder to exhaust one mode of execution before resorting to another. Provided the chosen mode is recognized by law and the prescribed procedure is followed, a decree-holder is entitled to pursue the mode that is reasonably calculated to realize the decretal sum.
30. The second issue is whether the statutory requirements governing attachment of immovable property have been satisfied.
31. Order 22 Rule 48 of the Civil Procedure Rules prescribes the procedure for the attachment of immovable property in execution of a decree.
32. The Rule requires that such attachment be effected by the issuance of a prohibitory order restraining the judgement-debtor from transferring, charging or otherwise dealing with the property and prohibiting all persons from acquiring any interest therein through such dealings.
33. The purpose of the prohibitory order is to preserve the property pending the execution process and to ensure that the judgement-debtor does not defeat the decree by disposing of or encumbering the property.
34. Order 22 Rule 49 further requires that a copy of the prohibitory order be served upon the judgement-debtor and, where the property is registered, that the order be transmitted to the appropriate land registry for registration against the title.
35. Registration of the prohibitory order serves to notify third parties of the subsisting attachment and preserves the property from any dealings that may prejudice the decree-holder’s right to realize the fruits of the decree through execution.
36. The record shows that when the application first came before the court, Mabeya J. granted the prohibitory orders sought in prayers 2 and 3 and directed that the Respondent be served. The Applicant thereafter effected service upon the Respondent, as evidenced by the affidavit of service on record.
37. Consequently, the Respondent was afforded an opportunity to challenge the intended execution but elected not to do so. The requirements of procedural fairness and the rules governing attachment of immovable property have therefore been fully complied with.
38. The Applicant has also annexed an official search demonstrating that the property known as LR No. 24880, Kilifi, Title No. 43510, Plot No. A87 is registered in the Respondent’s name.
39. Section 44(1) of the Civil Procedure Act provides that all property belonging to a judgment-debtor, whether movable or immovable, is liable to attachment and sale in execution of a decree unless it falls within one of the statutory exemptions.
40. There is no evidence before the Court that LR No. 24880 – Kilifi – Title No. 43510 – Plot No. A87 falls within any of the exempt categories, and it is therefore liable to attachment and sale in execution of the decree. The court is therefore satisfied that the property constitutes attachable property capable of being sold in execution of the decree.
41. The remaining issue is whether the court should issue warrants of sale in respect of the attached property.
42. Having lawfully attached the Respondent’s immovable property through a prohibitory order issued pursuant to Order 22 Rules 48 and 49 of the Civil Procedure Rules, the court is empowered to direct that the attached property be sold in execution of the decree in accordance with the provisions governing judicial sales under Order 22 of the Civil Procedure Rules.
43. The Applicant has demonstrated the existence of an unsatisfied decree, the attachment of the property, the Respondent’s ownership thereof, and due service of the execution proceedings. No legal or factual impediment has been placed before the court to justify withholding the next stage of execution.
44. The court is mindful that the sale of immovable property is a serious step, since it results in the compulsory deprivation of proprietary rights. For that reason, the Civil Procedure Rules prescribe elaborate safeguards intended to ensure fairness to the judgement-debtor.
45. In the present case, those safeguards have been observed. The Respondent has had notice of the execution proceedings and has chosen not to contest them. The court is therefore satisfied that the Applicant has established sufficient cause for the issuance of warrants of sale.
46. Accordingly, the court finds that the application dated 22nd April, 2026 is meritorious. The attachment of LR No. 24880 – Kilifi – Title No. 43510 – Plot No. A87 having already been effected through the prohibitory order previously issued, the court hereby authorises the next stage of execution.
47. Warrants of sale shall issue to Double M. Auctioneers to sell the said property by public auction in accordance with the provisions of the Civil Procedure Act, the Civil Procedure Rules and all other applicable law, the proceeds thereof to be applied towards satisfaction of the decretal amount together with the costs of execution.
48. Costs of the application, assessed at Ksh.4,000/- shall be borne by the Respondent.
49. This file is hereby closed.
DELIVERED (virtually), DATED & SIGNED this 6th day of August, 2026.
JOE M. OMIDO.
JUDGE
APPLICANT: Ms. Achieng.
RESPONDENT: No appearance.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.