1. Before this Court for determination is an Application dated 18.10.23 in which the Defendant seeks an order that the Kwale Land Registrar do remove the caution and/or restrictions registered against its property known as Apartment No. 311, Block A on Title No. Kwale/Diani/547 (the suit property). The Defendant also seeks costs of the Application.
2. In his affidavit in support of the Application sworn on even date and another on 18.7.25, Christian Bezner, a director of the Defendant averred that judgment was entered against him on 30.5.22. Thereafter, he was served with a proclamation notice for attachment of his property; that before he could make payment, the Plaintiff placed a caution against the suit property; that on 19.6.23, he made payment of the total sum of Kshs. 6,304,660/= which is over and above the decretal sum of Kshs. 4,004,660.70; that the Plaintiff having been satisfied with payment, made an application for removal of the caution at the Kwale Land Registry. The Defendant thus urged the Court to intervene and grant the prayers sought.
3. The Plaintiff opposed the Application vide his replying affidavit sworn on 6.11.26. He averred that judgment was entered in his favour against the Defendant for Kshs. 2,611,676/= in terms of a certificate of taxation dated 7.11.18. A decree was issued on 11.12.18; that a notice of entry of judgment was served on the Defendant by registered post on 7.10.2020; that execution proved elusive for a period of 1 year and 7 months; that a garnishee application against the Defendant’s bankers NCBA Bank found an empty account; that on 14.6.22, the Court granted an order to lift the corporate veil of the Defendant; that the Defendant did not bother to appear in court in any of the proceedings; that the sum of Kshs. 2,300,000/= which the Defendant claims it made on 19.6.23 could not satisfy a decree issued on 11.12.18 for Kshs. 2,611,625/= together with interest at court rates; that by 9.2.26 when the matter was to be mentioned, the decretal sum and interest will have accrued to Kshs. 5,164,651.50.
4. The Plaintiff denied having made an application for removal of the caution; that payment to the auctioneer was made in instalments over a long period of time and does not include interest; that payment to the auctioneer does not equate proof of payment to the judgment creditor, nor does it preclude an assessment of whether such payment satisfies the decree.
5. I have considered the Application, response and submissions. The circumstances herein are that the Defendant seeks the removal of the caution registered against its property by the Plaintiff, claiming it has fully settled the decree. The Plaintiff however denies that the decree has been settled in full.
6. The warrant of attachment on record dated 20.5.22 and issued to Kinyua Auctioneers Agencies indicates that the amount due then was Kshs. 4,004, 660.70. The warrant of attachment was to be returned to court on 30.8.22 verifying the date and manner in which it has been or has not been executed.
7. The Defendant claims that it made payment of the said sum to the auctioneer on 19.6.23 and a further sum of Kshs. 2,300,000/= on even date. This is disputed by the Plaintiff who says that no return to that effect was filed by the auctioneer.
8. It is trite that in the execution of a decree, an auctioneer is an agent of the court. In National Bank of Kenya Ltd v Joly Family Stores & another [2005] KEHC 2955 (KLR), Alnashir Visram (as he then was) stated as follows:
Contrary to the finding of the trial Court, auctioneers, while executing decrees of the courts, are indeed agents of the Court. It is the courts which give them authority to execute, for example by the different modes of warrants and the same court can order them to stop an execution process.
9. On its part, the Court of Appeal stated in Davis & Shirtliff Ltd v Attorney-General [1978] KECA 1 (KLR), that the court broker was an agent of the court.
10. As an agent of the court, the auctioneer is responsible to the court. the auctioneer thus has an obligation to return the warrant issued to it by the court, with an endorsement verifying the day on which and the manner in which it was or was not executed.
11. Rule 11(1) of the Auctioneers Rules provides that a court warrant or letter of instruction shall include inter alia the decretal amount, date of decree, date of return to court. Similar provisions are contained in Order 22 Rule 21 of the Civil Procedure Rules which provides:
(1) The officer entrusted with the execution of the process shall endorse thereon the day on, and the manner in which it was executed, and, if the latest day specified in the process for the return thereof has been exceeded, the reason for the delay, or, if it was not executed, the reason why it was not executed, and shall return the process with such endorsement to the court.
(2) Where the endorsement is to the effect that such officer is unable to execute the process, the court may examine him touching his alleged inability, and may, if it thinks fit, summon and examine witnesses as to such inability, and shall record the result.
12. As indicated herein, the warrant of attachment issued to the auctioneer was to be returned to court on 30.8.22 verifying the date and manner in which it has been or has not been executed. There is however no such return on record. The payment of the amount due thus remains disputed. Had the auctioneer filed his return of the warrant to the court as required by law, this stalemate would have been resolved.
13. I now turn to the Defendant’s claim that the Plaintiff being satisfied with the alleged payment had made an application to the Kwale Lands Registry to remove the caution registered against the suit property. This claim was denied by the Plaintiff who rejected the exhibited application claiming it was not by his hand. The Defendant did not make any effort by way of a supplementary affidavit to demonstrate that the alleged application was indeed made by the Plaintiff.
14. It is settled law that he who alleges must prove. Section 107 of the Evidence Act stipulates:
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
15. The Defendant was obligated to place before the Court, evidence that the decretal amount had been settled and the returned warrant of attachment containing the endorsement to that effect. Having failed to discharge the burden of proof placed upon it by law, the Defendant’s claim that it has settled the decretal sum remains unsubstantiated and the same is rejected.
16. In the result, the Court finds that the Application dated 18.10.23 lacks merit and the same is dismissed with costs to the Plaintiff.
DATED SIGNED and DELIVERED in MALINDI this 18th day of September 2026
2. In his affidavit in support of the Application sworn on even date and another on 18.7.25, Christian Bezner, a director of the Defendant averred that judgment was entered against him on 30.5.22. Thereafter, he was served with a proclamation notice for attachment of his property; that before he could make payment, the Plaintiff placed a caution against the suit property; that on 19.6.23, he made payment of the total sum of Kshs. 6,304,660/= which is over and above the decretal sum of Kshs. 4,004,660.70; that the Plaintiff having been satisfied with payment, made an application for removal of the caution at the Kwale Land Registry. The Defendant thus urged the Court to intervene and grant the prayers sought.
3. The Plaintiff opposed the Application vide his replying affidavit sworn on 6.11.26. He averred that judgment was entered in his favour against the Defendant for Kshs. 2,611,676/= in terms of a certificate of taxation dated 7.11.18. A decree was issued on 11.12.18; that a notice of entry of judgment was served on the Defendant by registered post on 7.10.2020; that execution proved elusive for a period of 1 year and 7 months; that a garnishee application against the Defendant’s bankers NCBA Bank found an empty account; that on 14.6.22, the Court granted an order to lift the corporate veil of the Defendant; that the Defendant did not bother to appear in court in any of the proceedings; that the sum of Kshs. 2,300,000/= which the Defendant claims it made on 19.6.23 could not satisfy a decree issued on 11.12.18 for Kshs. 2,611,625/= together with interest at court rates; that by 9.2.26 when the matter was to be mentioned, the decretal sum and interest will have accrued to Kshs. 5,164,651.50.
4. The Plaintiff denied having made an application for removal of the caution; that payment to the auctioneer was made in instalments over a long period of time and does not include interest; that payment to the auctioneer does not equate proof of payment to the judgment creditor, nor does it preclude an assessment of whether such payment satisfies the decree.
5. I have considered the Application, response and submissions. The circumstances herein are that the Defendant seeks the removal of the caution registered against its property by the Plaintiff, claiming it has fully settled the decree. The Plaintiff however denies that the decree has been settled in full.
6. The warrant of attachment on record dated 20.5.22 and issued to Kinyua Auctioneers Agencies indicates that the amount due then was Kshs. 4,004, 660.70. The warrant of attachment was to be returned to court on 30.8.22 verifying the date and manner in which it has been or has not been executed.
7. The Defendant claims that it made payment of the said sum to the auctioneer on 19.6.23 and a further sum of Kshs. 2,300,000/= on even date. This is disputed by the Plaintiff who says that no return to that effect was filed by the auctioneer.
8. It is trite that in the execution of a decree, an auctioneer is an agent of the court. In National Bank of Kenya Ltd v Joly Family Stores & another [2005] KEHC 2955 (KLR), Alnashir Visram (as he then was) stated as follows:
Contrary to the finding of the trial Court, auctioneers, while executing decrees of the courts, are indeed agents of the Court. It is the courts which give them authority to execute, for example by the different modes of warrants and the same court can order them to stop an execution process.
9. On its part, the Court of Appeal stated in Davis & Shirtliff Ltd v Attorney-General [1978] KECA 1 (KLR), that the court broker was an agent of the court.
10. As an agent of the court, the auctioneer is responsible to the court. the auctioneer thus has an obligation to return the warrant issued to it by the court, with an endorsement verifying the day on which and the manner in which it was or was not executed.
11. Rule 11(1) of the Auctioneers Rules provides that a court warrant or letter of instruction shall include inter alia the decretal amount, date of decree, date of return to court. Similar provisions are contained in Order 22 Rule 21 of the Civil Procedure Rules which provides:
(1) The officer entrusted with the execution of the process shall endorse thereon the day on, and the manner in which it was executed, and, if the latest day specified in the process for the return thereof has been exceeded, the reason for the delay, or, if it was not executed, the reason why it was not executed, and shall return the process with such endorsement to the court.
(2) Where the endorsement is to the effect that such officer is unable to execute the process, the court may examine him touching his alleged inability, and may, if it thinks fit, summon and examine witnesses as to such inability, and shall record the result.
12. As indicated herein, the warrant of attachment issued to the auctioneer was to be returned to court on 30.8.22 verifying the date and manner in which it has been or has not been executed. There is however no such return on record. The payment of the amount due thus remains disputed. Had the auctioneer filed his return of the warrant to the court as required by law, this stalemate would have been resolved.
13. I now turn to the Defendant’s claim that the Plaintiff being satisfied with the alleged payment had made an application to the Kwale Lands Registry to remove the caution registered against the suit property. This claim was denied by the Plaintiff who rejected the exhibited application claiming it was not by his hand. The Defendant did not make any effort by way of a supplementary affidavit to demonstrate that the alleged application was indeed made by the Plaintiff.
14. It is settled law that he who alleges must prove. Section 107 of the Evidence Act stipulates:
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
15. The Defendant was obligated to place before the Court, evidence that the decretal amount had been settled and the returned warrant of attachment containing the endorsement to that effect. Having failed to discharge the burden of proof placed upon it by law, the Defendant’s claim that it has settled the decretal sum remains unsubstantiated and the same is rejected.
16. In the result, the Court finds that the Application dated 18.10.23 lacks merit and the same is dismissed with costs to the Plaintiff.
DATED SIGNED and DELIVERED in MALINDI this 18th day of September 2026