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Background
The Applicant, Ena Investment Limited, by a Notice of Motion dated 15 th September 2025, brought under Order 9 Rule 10, Order 42 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules and the Auctioneers Rules, seeks—
Stay of execution of the warrants of attachment and sale issued by this Court on 11 th September 2025
A declaration that the proclamation dated 22 nd August 2025 and notification of sale dated 11 th September 2025 are unlawful
Release of motor vehicle KDK 057M
Leave to settle the decretal sum of KES. 1,242,372 in two equal instalments of KES. 621,186 each
The motion is supported by the affidavit of Richard Meraba Mogire, the Chief Executive Officer of the Applicant.
The Decree Holder and Auctioneer were both served with the application and hearing notice on 15 th September 2025 but filed no response nor attended the hearing. The motion therefore proceeded unopposed.
Applicant’s Case
The Applicant avers that this Court delivered judgment on 03 rd April 2025, awarding the Decree Holder KES. 1,242,372. Pursuant to that judgment, a decree, warrants of attachment and of sale were issued on 11 th September 2025, and on the following day, the 02 nd Respondent attached the Applicant’s motor vehicle KDK 057M.
It is contended that— No valid proclamation was ever served prior to attachment
The purported proclamation dated 22 nd August 2025 was said to have been received by one Evans who is neither its employees nor authorised representatives
The attached vehicle, a PSV bus, earns approximately KES. 117,000 per day, and its detention causes substantial loss
The Applicant has drawn and filed copies of two cheques covering the decretal amount to demonstrate readiness to settle the decree.
Issues for Determination
I have considered the application and the issues that arise for determination are:-
Whether the attachment was lawful
What is the effect of the annexed cheques
Whether stay of execution or further orders are necessary.
Legality of the Attachment
Rule 12 of the Auctioneers Rules (1997) prescribes the mandatory procedure for attachment of movables. An auctioneer must:
Prepare a proclamation in Sale Form 2 listing and valuing each item
Serve the judgment debtor with a seven-day written notice to redeem the goods
Refrain from removing any goods until expiry of that grace period
The purported proclamation dated 22 nd August 2025 bears a signature attributed to one Evans. The Applicant categorically denies knowledge of that individual and avers that no such person is or was in its employment. No affidavit of service was filed by the Auctioneer to prove lawful service, nor was any evidence adduced to rebut the Applicant’s denial thereof.
In Hudson Kariuki Njiru t/a Vision Auctioneers v Kanyi [2024] KEHC 11847 (KLR), the Court emphasised that:
“Compliance with Rule 12 of the Auctioneers Rules is mandatory. A proclamation that is not duly served upon the judgment debtor renders any subsequent attachment a nullity, as the debtor is denied the statutory seven-day notice to redeem the goods.”
Guided by that authority, I find that there was no valid service of the proclamation upon the Applicant. The attachment of motor vehicle KDK 057M was therefore irregular and unlawful.
Effect of copies of cheques and Need for Stay
The Applicant annexed copies of two cheques dated 13 th September 2025 and 13 th October 2025 respectively, drawn in favour of the Decree Holder’s advocate on record. The record reveals that these cheques were issued prior to the filing of the present application.
The issuance of the cheques demonstrates bona fides and a genuine intention to satisfy the decree of the Court. As stated in Keshavji Jethabhai & Bros Ltd v Saleh Abdulla [1959] EA 260 (CA), the tender of payment, even before or during execution proceedings, is a material consideration in assessing the conduct and good faith of a judgment debtor. There being no evidence of dishonour, the Court is entitled to presume that the decretal amount has been duly settled.
Need for Stay
In light of the foregoing, and there being no evidence from the Decree Holder disputing payment, the necessity for stay of execution is effectively overtaken by events. The object of stay is to preserve the subject matter pending satisfaction or appeal. Where the decretal sum has already been paid or is in the process of being settled, there remains no justification for stay or for further orders permitting payment by instalments.
Disposition
The attachment of motor vehicle registration number KDK 057M by Senema Africa Auctioneers is declared irregular and unlawful for non-compliance with Rule 12 of the Auctioneers Rules.
Consequent upon that finding, the 2 nd Respondent shall upon service of this order forthwith release motor vehicle KDK 057M to the Applicant
The prayer for stay of execution and payment by instalments is declined, the Court noting that the decretal sum appears to have been settled as demonstrated by the annexed cheques
Storage charges, if any, shall be borne by the 2 nd Respondent, subject to taxation if disputed
Each party, including the auctioneer shall bear their own costs
Appearances
Court Assistant - Hilda
For JD/Applicant - Mr. Ayora for Ayora Magati & Co.Advocates
For DH/1 st Respondent – N/A for HKW LAW Advocates
For 2 nd Respondent - N/A
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Background
The Applicant, Ena Investment Limited, by a Notice of Motion dated 15 th September 2025, brought under Order 9 Rule 10, Order 42 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules and the Auctioneers Rules, seeks—
Stay of execution of the warrants of attachment and sale issued by this Court on 11 th September 2025
A declaration that the proclamation dated 22 nd August 2025 and notification of sale dated 11 th September 2025 are unlawful
Release of motor vehicle KDK 057M
Leave to settle the decretal sum of KES. 1,242,372 in two equal instalments of KES. 621,186 each
The motion is supported by the affidavit of Richard Meraba Mogire, the Chief Executive Officer of the Applicant.
The Decree Holder and Auctioneer were both served with the application and hearing notice on 15 th September 2025 but filed no response nor attended the hearing. The motion therefore proceeded unopposed.
Applicant’s Case
The Applicant avers that this Court delivered judgment on 03 rd April 2025, awarding the Decree Holder KES. 1,242,372. Pursuant to that judgment, a decree, warrants of attachment and of sale were issued on 11 th September 2025, and on the following day, the 02 nd Respondent attached the Applicant’s motor vehicle KDK 057M.
It is contended that— No valid proclamation was ever served prior to attachment
The purported proclamation dated 22 nd August 2025 was said to have been received by one Evans who is neither its employees nor authorised representatives
The attached vehicle, a PSV bus, earns approximately KES. 117,000 per day, and its detention causes substantial loss
The Applicant has drawn and filed copies of two cheques covering the decretal amount to demonstrate readiness to settle the decree.
Issues for Determination
I have considered the application and the issues that arise for determination are:-
Whether the attachment was lawful
What is the effect of the annexed cheques
Whether stay of execution or further orders are necessary.
Legality of the Attachment
Rule 12 of the Auctioneers Rules (1997) prescribes the mandatory procedure for attachment of movables. An auctioneer must:
Prepare a proclamation in Sale Form 2 listing and valuing each item
Serve the judgment debtor with a seven-day written notice to redeem the goods
Refrain from removing any goods until expiry of that grace period
The purported proclamation dated 22 nd August 2025 bears a signature attributed to one Evans. The Applicant categorically denies knowledge of that individual and avers that no such person is or was in its employment. No affidavit of service was filed by the Auctioneer to prove lawful service, nor was any evidence adduced to rebut the Applicant’s denial thereof.
In Hudson Kariuki Njiru t/a Vision Auctioneers v Kanyi [2024] KEHC 11847 (KLR), the Court emphasised that:
“Compliance with Rule 12 of the Auctioneers Rules is mandatory. A proclamation that is not duly served upon the judgment debtor renders any subsequent attachment a nullity, as the debtor is denied the statutory seven-day notice to redeem the goods.”
Guided by that authority, I find that there was no valid service of the proclamation upon the Applicant. The attachment of motor vehicle KDK 057M was therefore irregular and unlawful.
Effect of copies of cheques and Need for Stay
The Applicant annexed copies of two cheques dated 13 th September 2025 and 13 th October 2025 respectively, drawn in favour of the Decree Holder’s advocate on record. The record reveals that these cheques were issued prior to the filing of the present application.
The issuance of the cheques demonstrates bona fides and a genuine intention to satisfy the decree of the Court. As stated in Keshavji Jethabhai & Bros Ltd v Saleh Abdulla [1959] EA 260 (CA), the tender of payment, even before or during execution proceedings, is a material consideration in assessing the conduct and good faith of a judgment debtor. There being no evidence of dishonour, the Court is entitled to presume that the decretal amount has been duly settled.
Need for Stay
In light of the foregoing, and there being no evidence from the Decree Holder disputing payment, the necessity for stay of execution is effectively overtaken by events. The object of stay is to preserve the subject matter pending satisfaction or appeal. Where the decretal sum has already been paid or is in the process of being settled, there remains no justification for stay or for further orders permitting payment by instalments.
Disposition
The attachment of motor vehicle registration number KDK 057M by Senema Africa Auctioneers is declared irregular and unlawful for non-compliance with Rule 12 of the Auctioneers Rules.
Consequent upon that finding, the 2 nd Respondent shall upon service of this order forthwith release motor vehicle KDK 057M to the Applicant
The prayer for stay of execution and payment by instalments is declined, the Court noting that the decretal sum appears to have been settled as demonstrated by the annexed cheques
Storage charges, if any, shall be borne by the 2 nd Respondent, subject to taxation if disputed
Each party, including the auctioneer shall bear their own costs
Appearances
Court Assistant - Hilda
For JD/Applicant - Mr. Ayora for Ayora Magati & Co.Advocates
For DH/1 st Respondent – N/A for HKW LAW Advocates
For 2 nd Respondent - N/A
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