RULING NO. 2
1. The defendant/applicant filed a Notice of Motion application dated 15th July 2025 under the provisions of Sections 1A, 1B & 3A of the Civil Procedure Act, Order 22 Rules 18 & 22 and Order 42 Rule 6 of the Civil Procedure Rules, 2010, and all other enabling provisions of the law seeking orders for stay and setting aside of the warrants of attachment and sale of its movable property issued on 9th July 2025. The defendant also seeks an order to enlarge time within which the parties’ Advocates are required to open a joint interest-earning account as earlier directed by the Court. In addition, the defendant prays for an order to compel the Deputy Registrar to issue a certified copy of the Order relating to the opening of the said joint account within seven (7) days, failure to which the Deputy Registrar shall be required to appear before the Court to explain the non-issuance.
2. The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Mr. Pushpinder Singh Mann, the defendant’s General Manager-Administration. Mr. Mann averred that Judgment was delivered in favour of the plaintiff on 30th May 2008. He deposed that execution of a decree over one year old can only proceed following a Notice to Show Cause. He claimed that although the plaintiff had issued a Notice to Show Cause dated 22nd June 2022, the same was stayed by the Court on 25th July 2024 and remains unheard. He stated that by the same Orders, the parties herein were directed to open a joint interest-earning account pending the determination of Nairobi Civil Appeal No. E672 of 2022, and the parties’ Advocates mutually agreed to open the account with Absa Bank.
3. Mr. Mann deposed that the defendant’s Advocates forwarded the account opening documents and requirements, including a request for a certified copy of the Court Orders, but the plaintiff’s Advocates have not supplied their documentation, nor has the Deputy Registrar has not issued the Certified Order despite reminders. He further deposed that notwithstanding the pending Notice to Show Cause and the absence of the Certified Order, the Deputy Registrar issued warrants of attachment and sale dated 9th July 2025, pursuant to which Icon Auctioneers proclaimed the defendant’s goods on 11th July 2025, with attachment scheduled by 18th July 2025. He contended that the defendant has already furnished security for the decretal sum which is being held at Prime Bank pending transfer to the joint account, and that its efforts to comply have been frustrated by the Deputy Registrar’s inaction.
4. In opposition to the application, the plaintiff filed a replying affidavit sworn on 16th July 2025 by Mr. Zeyun Yang, the plaintiff’s Director. Mr. Yang averred that on 19th July 2024, the Court deferred the Deputy Registrar’s Ruling on the plaintiff’s Notice to Show Cause dated 20th June 2022 on condition that the defendant deposits Kshs.2,000,000/= in a joint interest-earning account within 20 days. He stated that the defendant has nearly a year later, failed to comply with those conditional Orders. He asserted that the plaintiff despite being entitled to enjoy the fruits of a Judgment delivered over 17 years ago, has been hindered by the defendant’s persistent non-compliance and is therefore undeserving of equitable reliefs. He contended that the defendant is abusing the Court process, has been in continuous breach of express Court Orders, and is improperly shifting blame to the Deputy Registrar without evidence.
5. Mr. Yang maintained that the defendant has concealed material facts, including that on 9th December 2024 the Court allowed the defendant’s earlier application and directed the Deputy Registrar to execute all account-opening forms to facilitate compliance, yet the defendant has taken no steps towards depositing the ordered security. He added that the prayer for enlargement of time had been adjudicated upon in the application dated 10th September 2024, rendering this Court functus officio on that issue. Mr. Yang averred that the defendant’s claim of potential business disruption is unsubstantiated. He further averred that the decretal amount now exceeds Kshs.9,651,244.00 due to prolonged delay. He asserted that the warrants of attachment and sale issued on 9th July 2025 were lawful and properly issued in execution of the decree.
6. In a rejoinder, the plaintiff filed a supplementary affidavit sworn on 6th August 2025 by Mr. Pushpinder Singh Mann, the defendant’s General Manager-Administration. Mr. Mann attributed the defendant’s inability to comply with the Court Orders to deposit Kshs.2,000,000/= in a joint interest-earning account to the plaintiff’s refusal to open the account with Prime Bank where the secured funds are being held. He stated that despite notifying the plaintiff of its intention to seek the Deputy Registrar’s assistance, the plaintiff failed to return the account-opening forms. He asserted that during the hearing of the earlier application on 9th December 2024, the plaintiff did not oppose the opening of the account save for insisting that it be opened with Absa Bank, which the defendant accepted, and thereafter its Advocates obtained and forwarded all necessary documents but the plaintiff failed to act on them.
7. Mr. Mann maintained that the Deputy Registrar has frustrated compliance by failing to issue a certified copy of the Court Order required for liquidation of the bond and transfer of the secured sums into the joint account despite repeated reminders. He also contended that the Notice to Show Cause proceedings remain pending and that the Deputy Registrar unlawfully issued Warrants of Attachment and Sale in contravention of the Civil Procedure Rules and without determination of the said Notice. Mr. Mann denied the allegations leveled against the defendant of material non-disclosure, disputed the applicability of the doctrine of functus officio, and asserted that the circumstances of this case are novel, warranting intervention by this Court to prevent a miscarriage of justice.
8. The application herein was canvassed by way of written submissions. The defendant’s submissions were filed on 7th August 2025 by the law firm of Tiego & Company Advocates, whereas the plaintiff’s submissions were filed by the law firm of CM Advocates LLP on 16th September 2025.
9. Mr. Tiego, learned Counsel for the defendant submitted that the Warrants of Attachment and Sale dated 9th July 2025 are unlawful, having been issued by the Deputy Registrar in contravention of the mandatory requirements of Order 22 Rule 18(1) of the Civil Procedure Rules, 2010, which stipulate that where a decree is over one year old, execution can only issue after a Notice to Show Cause has been served, heard, and determined. He stated that the Notice to Show Cause proceedings were stayed by this Court on 25th July 2024 and remain pending, yet the Deputy Registrar proceeded to issue the impugned warrants. Counsel relied on the cases of Macfoy v United Africa Co. Ltd [1961] 3 All E.R. 1169 and Anil Ratilal Tailor & another v Gorsasia Hiteshi Ramji & another [2021] KEHC 5585 (KLR), and contended that this procedural irregularity renders the said warrants null and void.
10. Mr. Tiego stated that the defendant seeks enlargement of time for opening the joint account, arguing that non-compliance was occasioned not by its own default but by administrative bottlenecks and the plaintiff’s non-cooperation. Citing the Supreme Court case of Charo v Mwashetani & 3 others [2014] KESC 47 (KLR), Counsel submitted that delays arising from Registry inefficiencies should not be visited upon a diligent litigant, and that the Court retains jurisdiction to extend time since the issues raised, particularly, the Deputy Registrar’s failure to issue the requisite Order, have not been previously litigated.
11. Mr. Githui, learned Counsel for the plaintiff submitted that the defendant has not satisfied the mandatory criteria for being granted of an order for stay of execution pending Appeal as set out under Order 42 Rule 6(2) of the Civil Procedure Rules, 2010. He argued that the requirements provided thereunder are conjunctive and inseverable, as affirmed in the case of Kiplagat Kotut v Rose Jebor Kipngok [2015] KEELC 837 (KLR). Counsel stated that judicial discretion must protect both parties. He further stated that an order for stay of execution is granted as a discretionary remedy but must be exercised judiciously and in the interest of justice. He further stated that in so doing, the Court must balance an applicant’s right to appeal and the respondent’s equally weighty right to enjoy the fruits of its Judgment as was held by the Court in the case of Whycliffe Bundi v Flame Tree Africa Limited [2018] KEELRC 534 (KLR).
12. Counsel submitted that the plaintiff has held a decree since 2008, which amounts to approximately 17 years of being deprived of its lawful entitlement, and any further delay requires just cause, which the defendant has not demonstrated. Mr. Githui contended that the defendant has not shown, pleaded, or even alleged substantial loss, which is the cornerstone of applications for stay of execution as was held by the Court of Appeal in the oft cited case of Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR). He asserted that the mere commencement of execution does not amount to substantial loss. Counsel claimed that despite the Orders issued on 19th July 2024 and 9th December 2024, the defendant never sought extraction of the said Orders from the Deputy Registrar, did not deposit funds as ordered and has not acted diligently since filing the instant application.
ANALYSIS AND DETERMINATION.
13. Upon consideration of the application filed herein, the grounds on the face of it, and the affidavits filed in support thereof, the replying affidavit by the plaintiff and the written submissions by Counsel for the parties, the issues that arise for determination are –
i) Whether the warrants of attachment and sale issued on 9th July 2025 were irregular or illegal thus they ought to be set aside; and
ii) Whether this Court ought to enlarge the time within which the parties should open a joint interest-earning account.
Whether the warrants of attachment and sale issued on 9th July 2025 were irregular or illegal thus they ought to be set aside.
14. The defendant contended that the warrants of attachment and sale issued on 9th July 2025 were unlawful because a Notice to Show Cause dated 22nd June 2022 remains pending and unheard, and the Deputy Registrar acted irregularly by issuing the said warrants in the absence of a Certified Order required for execution of the joint account directive. The defendant further attributes the delay in compliance to the alleged inaction by the Deputy Registrar and non-cooperation from the plaintiff and its Advocates on record.
15. The plaintiff in opposition to the application being sought herein argued that execution followed a valid decree issued on 30th May 2008, upheld by the Court of Appeal, and that the defendant has been in continuous breach of the Court’s directions requiring it to deposit Kshs.2,000,000/= within 20 days from 19th July 2024. The plaintiff maintained that the impugned warrants were properly issued and that the defendant cannot rely on its own non-compliance to invalidate lawful execution.
16. Upon perusal of the Court record, it is evident that a decree exists and remains unsatisfied and that the defendant has not complied with the Orders issued on 19th July 2024 requiring it to deposit of Kshs.2,000,000/= in a joint interest earning account in the names of the Advocates for the parties herein. On 9th December 2024, the Court expressly extended the time required by the parties' Advocates herein to open a joint interest-earning account by thirty (30) days, but to date, there is no compliance with the Orders for deposit of security. Nevertheless, it is not disputed that execution of a decree over one year old can only proceed following a Notice to Show Cause. This position is anchored on the provisions of Order 22 Rule 18 of the Civil Procedure Rules, 2010, which states that –
1) Where an application for execution is made –
a) more than one year after the date of the decree;
b) against the legal representative of a party to the decree; or
c) for attachment of salary or allowance of any person under rule 43,
the court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him:
Provided that no such notice shall be necessary in consequence of more than one year having elapsed between the date of the decree and the application for execution if the application is made within one year from the date of the last order against the party against whom the execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment-debtor, if upon a previous application for execution against the same person the court has ordered execution to issue against him:
Provided further that no such notice shall be necessary on any application for the attachment of salary or allowance which is caused solely by reason of the judgment-debtor having changed his employment since a previous order for attachment.
2) Nothing in subrule (1) shall be deemed to preclude the court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice.
3) Except as provided in rule 6 and in this rule, no notice is required to be served on a judgment debtor before execution is issued against him.
17. From the above provisions, it is evident that there exist exceptions to the requirement for service of a Notice to Show Cause before execution of a decree that is over one year old. The exceptions include inter alia, where there was a previous execution application against the same debtor, and that the previous application resulted in a Court Order against the applicant, and the new application is made within one year of that last Order, then the Court does not need to issue a fresh Notice to Show Cause, even if the decree itself is more than a year old, which is not the case herein.
18. Upon perusal of this Court’s Ruling of 19th July 2024, it is clear that the Deputy Registrar’s Ruling on the plaintiff’s Notice to Show Cause dated 20th June 2022 was deferred on condition that the defendant deposits Kshs.2,000,000/= as security in an interest-earning bank account in the names of the Advocates on record. In the absence of compliance with the Order for deposit of security, the defendant’s application dated 11th October 2022 would stand dismissed and the Deputy Registrar would be at liberty to deliver a Ruling on the plaintiff’s Notice to Show Cause dated 20th June 2022, and thereafter execution would follow.
19. In light of the provisions of Order 22 Rule 18 of the Civil Procedure Rules, 2010, before issuance of the impugned Warrants of Attachment and Sale issued on 9th July 2025, the Deputy Registrar ought to have first delivered a Ruling on the plaintiff’s Notice to Show Cause dated 20th June 2022. I am therefore persuaded that the impugned Warrants of Attachment and Sale issued on 9th July 2025 were issued irregularly. In the circumstances, I am persuaded that the said warrants are illegal and ought to be set aside.
Whether this Court ought to enlarge the time within which the parties should open a joint interest-earning account.
20. The defendant’s case is that it is both ready and willing to comply with the Court Orders regarding the deposit of security. It stated that it forwarded account opening forms to the plaintiff’s Advocates to facilitate the process, but the same were never executed. It further stated that it also wrote to the Deputy Registrar of this Court on several occasions requesting for certified copies of the Orders dated 19th July 2024 and 9th December 2024, and offered to pay any requisite charges, but to date, no Certified Orders have been issued. The defendant contended that these failures by the plaintiff, its Advocates, and the Deputy Registrar have frustrated its efforts to comply with the Court Orders in respect to the deposit of security in an interest-earning joint account in the names of the parties' Advocates.
21. The plaintiff on the other hand asserted that the issue of enlargement of time was already adjudicated on, in the defendant’s earlier application dated 10th September 2024, thus this Court is functus officio.
22. It is worthy of note that following the Court Orders of 19th July 2024, the defendant wrote to the Deputy Registrar of this Court on the same day requesting for a certified copy of the said Orders, but received no response as is evident from the Court record and the Case Tracking System. Similarly, a letter dated 20th February 2025 requesting for a certified copy of the 9th December 2024 Orders also elicited no response. In addition to the foregoing, the defendant has demonstrated that vide a letter dated 27th March 2025 to the plaintiff’s Advocates through an email sent on 27th March 2025, the defendant sent account opening forms via email to the plaintiff’s Advocates on record, but these forms were still not executed. Notably, these events occurred after this Court granted extension of time on 9th December 2024
23. It is trite law that a Court only becomes functus officio after performing all its duties in a particular case. The Supreme Court of Kenya expounding on the doctrine of functus officio in the case of Raila Odinga & others v IEBC & others [2013] eKLR, cited with approval an excerpt from an article by Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832:
The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.
24. In light of the above, this Court notes that while the defendant previously sought an extension of time, the Court is not functus officio regarding a subsequent application seeking an order for extension of time where new circumstances justify reconsideration
25. From the foregoing, this Court finds that the delay in opening a joint interest-earning account cannot be solely attributed to the defendant. Both the Deputy Registrar’s failure to provide certified copies of the Orders and the plaintiff’s failure to execute the account opening forms contributed to the delay.
26. In the premise, this Court is persuaded that an order for extension of time to open the joint interest-earning account should issue.
27. Having found that the account opening process was frustrated by the Deputy Registrar’s failure to supply the defendant with a certified copy of the Orders requiring deposit of the said security in a joint interest earning account, I am persuaded that there is need to issue an Order compelling the Deputy Registrar of this Court to issue a certified copy of the Orders relating to the opening of the said joint account.
28. Accordingly, this Court finds that the instant application is merited. It is allowed in the following terms –
i) This Court hereby grants an Order setting aside the Warrants of Attachment and Sale of the defendant’s movable property made on 9th July 2025;
ii) This Court hereby grants an order enlarging the time within which the parties’ Advocates are required to open a joint interest-earning account as earlier directed by the Court, by a further thirty (30) days;
iii) The Deputy Registrar of this Court is hereby compelled to issue the defendant with a certified copy of the Orders relating to the opening of the said joint account within seven (7) days from the date of this Ruling;
iv) In the absence of compliance with Order No. (iii) above, the Deputy Registrar shall be required to appear before this Court to explain the non-issuance of a certified Order referred to therein, upon this Court being moved by the defendant; and
v) Costs of this application are awarded to the defendant/applicant.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 5th day of December 2025. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of;-
Mr. Tiego for the defendant/applicant
Mr. Miano for the plaintiff/respondent
Ms. B. Wokabi – Court Assistant.
1. The defendant/applicant filed a Notice of Motion application dated 15th July 2025 under the provisions of Sections 1A, 1B & 3A of the Civil Procedure Act, Order 22 Rules 18 & 22 and Order 42 Rule 6 of the Civil Procedure Rules, 2010, and all other enabling provisions of the law seeking orders for stay and setting aside of the warrants of attachment and sale of its movable property issued on 9th July 2025. The defendant also seeks an order to enlarge time within which the parties’ Advocates are required to open a joint interest-earning account as earlier directed by the Court. In addition, the defendant prays for an order to compel the Deputy Registrar to issue a certified copy of the Order relating to the opening of the said joint account within seven (7) days, failure to which the Deputy Registrar shall be required to appear before the Court to explain the non-issuance.
2. The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Mr. Pushpinder Singh Mann, the defendant’s General Manager-Administration. Mr. Mann averred that Judgment was delivered in favour of the plaintiff on 30th May 2008. He deposed that execution of a decree over one year old can only proceed following a Notice to Show Cause. He claimed that although the plaintiff had issued a Notice to Show Cause dated 22nd June 2022, the same was stayed by the Court on 25th July 2024 and remains unheard. He stated that by the same Orders, the parties herein were directed to open a joint interest-earning account pending the determination of Nairobi Civil Appeal No. E672 of 2022, and the parties’ Advocates mutually agreed to open the account with Absa Bank.
3. Mr. Mann deposed that the defendant’s Advocates forwarded the account opening documents and requirements, including a request for a certified copy of the Court Orders, but the plaintiff’s Advocates have not supplied their documentation, nor has the Deputy Registrar has not issued the Certified Order despite reminders. He further deposed that notwithstanding the pending Notice to Show Cause and the absence of the Certified Order, the Deputy Registrar issued warrants of attachment and sale dated 9th July 2025, pursuant to which Icon Auctioneers proclaimed the defendant’s goods on 11th July 2025, with attachment scheduled by 18th July 2025. He contended that the defendant has already furnished security for the decretal sum which is being held at Prime Bank pending transfer to the joint account, and that its efforts to comply have been frustrated by the Deputy Registrar’s inaction.
4. In opposition to the application, the plaintiff filed a replying affidavit sworn on 16th July 2025 by Mr. Zeyun Yang, the plaintiff’s Director. Mr. Yang averred that on 19th July 2024, the Court deferred the Deputy Registrar’s Ruling on the plaintiff’s Notice to Show Cause dated 20th June 2022 on condition that the defendant deposits Kshs.2,000,000/= in a joint interest-earning account within 20 days. He stated that the defendant has nearly a year later, failed to comply with those conditional Orders. He asserted that the plaintiff despite being entitled to enjoy the fruits of a Judgment delivered over 17 years ago, has been hindered by the defendant’s persistent non-compliance and is therefore undeserving of equitable reliefs. He contended that the defendant is abusing the Court process, has been in continuous breach of express Court Orders, and is improperly shifting blame to the Deputy Registrar without evidence.
5. Mr. Yang maintained that the defendant has concealed material facts, including that on 9th December 2024 the Court allowed the defendant’s earlier application and directed the Deputy Registrar to execute all account-opening forms to facilitate compliance, yet the defendant has taken no steps towards depositing the ordered security. He added that the prayer for enlargement of time had been adjudicated upon in the application dated 10th September 2024, rendering this Court functus officio on that issue. Mr. Yang averred that the defendant’s claim of potential business disruption is unsubstantiated. He further averred that the decretal amount now exceeds Kshs.9,651,244.00 due to prolonged delay. He asserted that the warrants of attachment and sale issued on 9th July 2025 were lawful and properly issued in execution of the decree.
6. In a rejoinder, the plaintiff filed a supplementary affidavit sworn on 6th August 2025 by Mr. Pushpinder Singh Mann, the defendant’s General Manager-Administration. Mr. Mann attributed the defendant’s inability to comply with the Court Orders to deposit Kshs.2,000,000/= in a joint interest-earning account to the plaintiff’s refusal to open the account with Prime Bank where the secured funds are being held. He stated that despite notifying the plaintiff of its intention to seek the Deputy Registrar’s assistance, the plaintiff failed to return the account-opening forms. He asserted that during the hearing of the earlier application on 9th December 2024, the plaintiff did not oppose the opening of the account save for insisting that it be opened with Absa Bank, which the defendant accepted, and thereafter its Advocates obtained and forwarded all necessary documents but the plaintiff failed to act on them.
7. Mr. Mann maintained that the Deputy Registrar has frustrated compliance by failing to issue a certified copy of the Court Order required for liquidation of the bond and transfer of the secured sums into the joint account despite repeated reminders. He also contended that the Notice to Show Cause proceedings remain pending and that the Deputy Registrar unlawfully issued Warrants of Attachment and Sale in contravention of the Civil Procedure Rules and without determination of the said Notice. Mr. Mann denied the allegations leveled against the defendant of material non-disclosure, disputed the applicability of the doctrine of functus officio, and asserted that the circumstances of this case are novel, warranting intervention by this Court to prevent a miscarriage of justice.
8. The application herein was canvassed by way of written submissions. The defendant’s submissions were filed on 7th August 2025 by the law firm of Tiego & Company Advocates, whereas the plaintiff’s submissions were filed by the law firm of CM Advocates LLP on 16th September 2025.
9. Mr. Tiego, learned Counsel for the defendant submitted that the Warrants of Attachment and Sale dated 9th July 2025 are unlawful, having been issued by the Deputy Registrar in contravention of the mandatory requirements of Order 22 Rule 18(1) of the Civil Procedure Rules, 2010, which stipulate that where a decree is over one year old, execution can only issue after a Notice to Show Cause has been served, heard, and determined. He stated that the Notice to Show Cause proceedings were stayed by this Court on 25th July 2024 and remain pending, yet the Deputy Registrar proceeded to issue the impugned warrants. Counsel relied on the cases of Macfoy v United Africa Co. Ltd [1961] 3 All E.R. 1169 and Anil Ratilal Tailor & another v Gorsasia Hiteshi Ramji & another [2021] KEHC 5585 (KLR), and contended that this procedural irregularity renders the said warrants null and void.
10. Mr. Tiego stated that the defendant seeks enlargement of time for opening the joint account, arguing that non-compliance was occasioned not by its own default but by administrative bottlenecks and the plaintiff’s non-cooperation. Citing the Supreme Court case of Charo v Mwashetani & 3 others [2014] KESC 47 (KLR), Counsel submitted that delays arising from Registry inefficiencies should not be visited upon a diligent litigant, and that the Court retains jurisdiction to extend time since the issues raised, particularly, the Deputy Registrar’s failure to issue the requisite Order, have not been previously litigated.
11. Mr. Githui, learned Counsel for the plaintiff submitted that the defendant has not satisfied the mandatory criteria for being granted of an order for stay of execution pending Appeal as set out under Order 42 Rule 6(2) of the Civil Procedure Rules, 2010. He argued that the requirements provided thereunder are conjunctive and inseverable, as affirmed in the case of Kiplagat Kotut v Rose Jebor Kipngok [2015] KEELC 837 (KLR). Counsel stated that judicial discretion must protect both parties. He further stated that an order for stay of execution is granted as a discretionary remedy but must be exercised judiciously and in the interest of justice. He further stated that in so doing, the Court must balance an applicant’s right to appeal and the respondent’s equally weighty right to enjoy the fruits of its Judgment as was held by the Court in the case of Whycliffe Bundi v Flame Tree Africa Limited [2018] KEELRC 534 (KLR).
12. Counsel submitted that the plaintiff has held a decree since 2008, which amounts to approximately 17 years of being deprived of its lawful entitlement, and any further delay requires just cause, which the defendant has not demonstrated. Mr. Githui contended that the defendant has not shown, pleaded, or even alleged substantial loss, which is the cornerstone of applications for stay of execution as was held by the Court of Appeal in the oft cited case of Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR). He asserted that the mere commencement of execution does not amount to substantial loss. Counsel claimed that despite the Orders issued on 19th July 2024 and 9th December 2024, the defendant never sought extraction of the said Orders from the Deputy Registrar, did not deposit funds as ordered and has not acted diligently since filing the instant application.
ANALYSIS AND DETERMINATION.
13. Upon consideration of the application filed herein, the grounds on the face of it, and the affidavits filed in support thereof, the replying affidavit by the plaintiff and the written submissions by Counsel for the parties, the issues that arise for determination are –
i) Whether the warrants of attachment and sale issued on 9th July 2025 were irregular or illegal thus they ought to be set aside; and
ii) Whether this Court ought to enlarge the time within which the parties should open a joint interest-earning account.
Whether the warrants of attachment and sale issued on 9th July 2025 were irregular or illegal thus they ought to be set aside.
14. The defendant contended that the warrants of attachment and sale issued on 9th July 2025 were unlawful because a Notice to Show Cause dated 22nd June 2022 remains pending and unheard, and the Deputy Registrar acted irregularly by issuing the said warrants in the absence of a Certified Order required for execution of the joint account directive. The defendant further attributes the delay in compliance to the alleged inaction by the Deputy Registrar and non-cooperation from the plaintiff and its Advocates on record.
15. The plaintiff in opposition to the application being sought herein argued that execution followed a valid decree issued on 30th May 2008, upheld by the Court of Appeal, and that the defendant has been in continuous breach of the Court’s directions requiring it to deposit Kshs.2,000,000/= within 20 days from 19th July 2024. The plaintiff maintained that the impugned warrants were properly issued and that the defendant cannot rely on its own non-compliance to invalidate lawful execution.
16. Upon perusal of the Court record, it is evident that a decree exists and remains unsatisfied and that the defendant has not complied with the Orders issued on 19th July 2024 requiring it to deposit of Kshs.2,000,000/= in a joint interest earning account in the names of the Advocates for the parties herein. On 9th December 2024, the Court expressly extended the time required by the parties' Advocates herein to open a joint interest-earning account by thirty (30) days, but to date, there is no compliance with the Orders for deposit of security. Nevertheless, it is not disputed that execution of a decree over one year old can only proceed following a Notice to Show Cause. This position is anchored on the provisions of Order 22 Rule 18 of the Civil Procedure Rules, 2010, which states that –
1) Where an application for execution is made –
a) more than one year after the date of the decree;
b) against the legal representative of a party to the decree; or
c) for attachment of salary or allowance of any person under rule 43,
the court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him:
Provided that no such notice shall be necessary in consequence of more than one year having elapsed between the date of the decree and the application for execution if the application is made within one year from the date of the last order against the party against whom the execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment-debtor, if upon a previous application for execution against the same person the court has ordered execution to issue against him:
Provided further that no such notice shall be necessary on any application for the attachment of salary or allowance which is caused solely by reason of the judgment-debtor having changed his employment since a previous order for attachment.
2) Nothing in subrule (1) shall be deemed to preclude the court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice.
3) Except as provided in rule 6 and in this rule, no notice is required to be served on a judgment debtor before execution is issued against him.
17. From the above provisions, it is evident that there exist exceptions to the requirement for service of a Notice to Show Cause before execution of a decree that is over one year old. The exceptions include inter alia, where there was a previous execution application against the same debtor, and that the previous application resulted in a Court Order against the applicant, and the new application is made within one year of that last Order, then the Court does not need to issue a fresh Notice to Show Cause, even if the decree itself is more than a year old, which is not the case herein.
18. Upon perusal of this Court’s Ruling of 19th July 2024, it is clear that the Deputy Registrar’s Ruling on the plaintiff’s Notice to Show Cause dated 20th June 2022 was deferred on condition that the defendant deposits Kshs.2,000,000/= as security in an interest-earning bank account in the names of the Advocates on record. In the absence of compliance with the Order for deposit of security, the defendant’s application dated 11th October 2022 would stand dismissed and the Deputy Registrar would be at liberty to deliver a Ruling on the plaintiff’s Notice to Show Cause dated 20th June 2022, and thereafter execution would follow.
19. In light of the provisions of Order 22 Rule 18 of the Civil Procedure Rules, 2010, before issuance of the impugned Warrants of Attachment and Sale issued on 9th July 2025, the Deputy Registrar ought to have first delivered a Ruling on the plaintiff’s Notice to Show Cause dated 20th June 2022. I am therefore persuaded that the impugned Warrants of Attachment and Sale issued on 9th July 2025 were issued irregularly. In the circumstances, I am persuaded that the said warrants are illegal and ought to be set aside.
Whether this Court ought to enlarge the time within which the parties should open a joint interest-earning account.
20. The defendant’s case is that it is both ready and willing to comply with the Court Orders regarding the deposit of security. It stated that it forwarded account opening forms to the plaintiff’s Advocates to facilitate the process, but the same were never executed. It further stated that it also wrote to the Deputy Registrar of this Court on several occasions requesting for certified copies of the Orders dated 19th July 2024 and 9th December 2024, and offered to pay any requisite charges, but to date, no Certified Orders have been issued. The defendant contended that these failures by the plaintiff, its Advocates, and the Deputy Registrar have frustrated its efforts to comply with the Court Orders in respect to the deposit of security in an interest-earning joint account in the names of the parties' Advocates.
21. The plaintiff on the other hand asserted that the issue of enlargement of time was already adjudicated on, in the defendant’s earlier application dated 10th September 2024, thus this Court is functus officio.
22. It is worthy of note that following the Court Orders of 19th July 2024, the defendant wrote to the Deputy Registrar of this Court on the same day requesting for a certified copy of the said Orders, but received no response as is evident from the Court record and the Case Tracking System. Similarly, a letter dated 20th February 2025 requesting for a certified copy of the 9th December 2024 Orders also elicited no response. In addition to the foregoing, the defendant has demonstrated that vide a letter dated 27th March 2025 to the plaintiff’s Advocates through an email sent on 27th March 2025, the defendant sent account opening forms via email to the plaintiff’s Advocates on record, but these forms were still not executed. Notably, these events occurred after this Court granted extension of time on 9th December 2024
23. It is trite law that a Court only becomes functus officio after performing all its duties in a particular case. The Supreme Court of Kenya expounding on the doctrine of functus officio in the case of Raila Odinga & others v IEBC & others [2013] eKLR, cited with approval an excerpt from an article by Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832:
The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.
24. In light of the above, this Court notes that while the defendant previously sought an extension of time, the Court is not functus officio regarding a subsequent application seeking an order for extension of time where new circumstances justify reconsideration
25. From the foregoing, this Court finds that the delay in opening a joint interest-earning account cannot be solely attributed to the defendant. Both the Deputy Registrar’s failure to provide certified copies of the Orders and the plaintiff’s failure to execute the account opening forms contributed to the delay.
26. In the premise, this Court is persuaded that an order for extension of time to open the joint interest-earning account should issue.
27. Having found that the account opening process was frustrated by the Deputy Registrar’s failure to supply the defendant with a certified copy of the Orders requiring deposit of the said security in a joint interest earning account, I am persuaded that there is need to issue an Order compelling the Deputy Registrar of this Court to issue a certified copy of the Orders relating to the opening of the said joint account.
28. Accordingly, this Court finds that the instant application is merited. It is allowed in the following terms –
i) This Court hereby grants an Order setting aside the Warrants of Attachment and Sale of the defendant’s movable property made on 9th July 2025;
ii) This Court hereby grants an order enlarging the time within which the parties’ Advocates are required to open a joint interest-earning account as earlier directed by the Court, by a further thirty (30) days;
iii) The Deputy Registrar of this Court is hereby compelled to issue the defendant with a certified copy of the Orders relating to the opening of the said joint account within seven (7) days from the date of this Ruling;
iv) In the absence of compliance with Order No. (iii) above, the Deputy Registrar shall be required to appear before this Court to explain the non-issuance of a certified Order referred to therein, upon this Court being moved by the defendant; and
v) Costs of this application are awarded to the defendant/applicant.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 5th day of December 2025. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of;-
Mr. Tiego for the defendant/applicant
Mr. Miano for the plaintiff/respondent
Ms. B. Wokabi – Court Assistant.