Introduction
1. In the Notice of Motion Applicatii22 nd May 2026 supported by the affidavit of the Applicant, LI JUNCHAO sworn on even date, the Applicant seeks orders that:
i) Spent
ii) Spent
iii) Spent
iv) THAT this Honourable Court be pleased to grant a stay of execution of the Ruling delivered on 19 th March, 2026 (Hon. Lady Justice F. Muchemi), the Orders and the Warrants of Attachment and Sale dated 12 May 2026 and the Proclamation of Attachment Notices No. 175 dated 15 May 2026, pending the hearing and determination of the Applicant's Appeal to the Court of Appeal against the whole of the Ruling and Orders of this Honourable Court delivered on the 19 March 2026.
v) THAT, in the alternative, and at the very least, this Honourable Court be pleased to grant a stay of execution of the said Ruling and Orders, and of the Warrants of Attachment and Sale dated 12 May 2026 and the Proclamation of Attachment Notices No. 175 dated 15 May 2026, pending the hearing and determination by the Court of Appeal of the Applicant's application in COACAPPL/E253/2026.
vi) THAT this Honourable Court be pleased to order that, as and for security for the due performance of such decree or order as may ultimately be binding upon the Applicant, the Applicant do deposit in Court the original log-books and records of registration of the motor vehicles and machinery presently attached and proclaimed under the Proclamation of Attachment Notices No. 175, the deposit whereof shall disable the Applicant from selling, transferring, charging, or otherwise alienating or dealing with the said vehicles and machinery pending the appeal, so that, taken together with the said machinery already in the Respondent's custody, the Respondent shall be fully secured; alternatively, such other security as this Honourable Court may, in its discretion, deem fit.
vii) THAT this Honourable Court be pleased to make such further or other Orders, give such directions, and grant such reliefs as the justice of the case may require.
viii) THAT the costs of and incidental to this Application be provided for.
2. In opposition to the application, the respondent filed a Replying Affidavit dated 8 th June 2026.
Applicant’s Case
3. The applicant deposes that the ruling delivered on 19 th March 2026 by this Court in favour of the respondent reassessed the sum of Kshs. 13,381,750/- to Kshs. 9,818,642. Leave to appeal and stay of execution of thirty days was granted by the Court.
4. The Applicant was dissatisfied with the said ruling hence filed the Notice of Appeal on 31 st March 2025 and applied for certified copies of proceedings and ruling which he was advised are currently proof read.
5. The applicant depones that the thirty days stay that was granted by the court on 19 th March 2026 lapsed. The respondent proceeded to cause warrants issue and proclamation of attachment notices no. 175 dated 15 th May 2026.
6. The applicant contends that a certificate of taxation is not self-executing and the respondent ought to have moved the court for entry of judgment upon the certificate of taxation being varied, to have judgment entered and the decree extracted under Order 21 of the Civil Procedure Rules before any warrant could lawfully issue. Further, the warrants of attachment and sale dated 12 th May 2026 relate to a decree passed on 19 th March 2026 yet what was delivered on 19 th March 2026 was an appellate variation order operating upon the taxation which is not an order that is capable of execution.
7. The applicant relies on Order 42 Rule 6 of the Civil Procedure Rules for the contention that the present court being the court whose ruling and orders of 19 th March 2026 are being appealed is best placed in the first instance to determine whether its decision should be stayed pending appeal and the mere pendency of an application in the Court of Appeal does not divest the instant court of jurisdiction.
8. The applicant further depones that they filed an application in the Chief Magistrate’s Court at Thika in Miscellaneous Civil Application No. E149 of 2024 to set aside the irregular warrants of attachment.
9. Further, application was lodged in the Court of Appeal in COACAPPL/E253/2026 for stay of execution to preserve the substratum pending the appeal against quantum in relation to the re-assessed taxation.
10. The Applicant thus contends that the three applications differ in forum, instrument, in ground and in relief and are therefore not sub judice .
11. The applicant further deposes that the application in the lower court, although filed on 21 st May 2026, remains unacted upon and the Court of Appeal is also yet to grant any stay; thus, the present court is the only court better positioned to protect them pending the inter parties hearing. The Applicant further depones that the Court of Appeal has certified the application as urgent and will soon constitute a bench to hear and determine it.
12. The applicant avers that unless the court intervenes, the respondent shall with effect from 22 nd May 2026 proceed to sell by public auction 12 units of its heavy commercial machinery. Once their machinery is carted away and sold to third party purchasers, no order of the court can undo the dispossession and the substratum of the application and pending appeal will be irretrievably dissipated and rendered nugatory.
13. The applicant asserts that the respondent is an auctioneer of no known or disclosed assets or substance and has no known means of refunding the impugned sum should it be paid and the appeal succeeds. The appeal would then be rendered nugatory and their money irrecoverable.
14. Further the applicant swore that the warrants of attachment and sale though issued on 12 th May 2026, were withheld and served upon them with the proclamation number 175 on 19 th May 2026, less than 72 hours before the seven-day proclamation period that was due to expire in 21 st May 2026 denying them the substance of the notice prescribed by Rule 12 of the Auctioneers Rules, 1997 and compressing its window for recourse to a bare matter of hours. Further, the respondent issued tax invoice no. 1579 of 12 th May 2026 in further sum of Kshs. 1,273,078.47 billing them afresh for proclamation, investigations, hired labour, hired transport and mileage in respect of machinery that has never left his custody and computing his commission of Kshs. 981,964.20 at 10% of the impugned figure.
15. The applicant underscores that they are ready, willing and able to abide by any conditions that the court may impose and offers to deposit in court the original log books and records of registration of the attached vehicles and machinery as security for the due performance of any decree or order ultimately binding upon it. The deposit of the said log books in court will disable them from selling, transferring, charging or in any manner alienating or dealing with the said vehicles and machinery pending the appeal.
The Respondent’s Case
16. The respondent deposes that the application is sub judice and amounts to forum shopping as the applicant has filed another application for stay of execution in the Court of Appeal.
17. Further, this Court on 23/5/2026 declined to grant any ex parte stay orders on the basis that Hon. Lady Justice Muchemi had already accorded the applicant leave to appeal and a stay of thirty days which had lapsed. The Respondent thus contends that the issue of stay of execution is res judicata ; Furthermore, since the Court of Appeal is already seized of the question of stay of execution, the present proceedings offend the doctrine of sub judice .
18. The respondent deposes that the applicant does not meet the threshold for grant of orders of stay of execution pursuant to Order 42 Rule 6 of the Civil Procedure Rules. He further states that he was instructed to execute warrants of attachment and sale against the applicant’s moveable property, which he carried out lawfully in accordance with standard practices and procedure provided for in the Auctioneer’s Act and rules.
19. Further, the Respondent swore that by dint of Rule 55(2), (3) & (4) of the Auctioneer’s Rules , auctioneer’s fees are assessed and not taxed whereas taxation is a preserve of proceedings before the High Court and falls within the purview of the Registrar. The Respondent contends that a magistrate’s court’s decision on assessment of fees is challenged on appeal and not through a reference, within the parlance of taxation. That consequently, the decision rendered on 19 th March 2026 was a decree unto itself and by implication on its face was a direction or command that the applicant pay the sum re-assessed and thus the order was capable of execution.
20. The respondent contends that whether the award rendered by this court on 19 th March 2026 was excessive, unwarranted, improperly assessed contrary to the provisions of the Fourth schedule to the Auctioneer’s Rules, the matter is now the preserve of the Court of Appeal and this Court is now functus officio on the issue. Further, execution is a lawful process of the court and thus neither shock, surprise nor consternation from the applicant would render the same unlawful.
21. The respondent reiterates that there exists no legal requirement under the Auctioneers Act or Rules obligating an auctioneer to move the court by way of notice of motion for entry of judgment in respect of auctioneer’s fees. The applicant improperly conflates the procedure governing auctioneer’s fees with that applicable to advocate’s fees under Section 51 of the Advocates Act. The contends that the applicant is currently enjoying status quo orders in Thika CMCC Misc. Application No. E149 of 2024 with respect to execution proceedings owing to the decision of this court rendered on 19 th March 2026 hence the continued sustenance of the instant application is likely to embarrass the court if conflicting orders are issued over the same subject matter.
22. The Respondent refuted the argument that Order 22 Rule 22(2) of the Civil Procedure Rules upon which the lower Court Application is premised, Order 42 Rule 6 of the Civil Procedure Rules upon which the current application is premised and Rule 5(2)(b) of the Court of Appeal Rules are distinct and mutually exclusive. The Respondent contends there is a likelihood of conflicting orders over the decree issued by this Court on 19 th March 2026 hence this court should down its tools.
23. The Respondent contends that the applicant ought to have moved this court immediately after its decision of 19 th March 2026 and asserted that the applicant is forum shopping for stay of execution orders before this court and before the Court of Appeal.
24. The respondent deponed that the execution of a money decree is not in itself proof of substantial loss. The respondent contends that the only way to purge any intended sale if stay is not granted is to settle the decree of this court issued on 19 th March 2026. In any event, the applicant is litigating over the attached goods vide High Court Thika Petition No. E023 of 2025 hence any prejudice that may be visited on the applicant if the sale of the attached property were to proceed can properly be mitigated by an award of damages.
25. Further, the respondent affirms that he is a seasoned auctioneer having practiced the trade, art and craft for a considerably long time and has consistently been successfully earning a living out of the trade. He further states that he has acquired various monetary and non-monetary assets. That he owns an Isuzu NPR Truck valued at over Kshs. 10 million which is more than capable of satisfying the decree if the appeal succeeds.
26. The respondent deposes that there has been unexplained and unreasonable delay by the applicant in approaching the court as the impugned decision was rendered on 19 th March 2026 and the applicant approached the present court on 22 nd May 2025, more than two months later, and only after being awoke by the execution process. He further avers that in the event the court grants stay of execution, the applicant should be ordered to deposit the entire decretal sum in a joint interest earning account in the names of both the advocates. Additionally, since 2022, the applicant has failed to settle the respondent fees and continues to forestall such payment by bogging the court with unnecessary litigation and applications. Thus, should the court allow the present application, he would be prejudiced personally and professionally.
27. The applicant filed a Further affidavit dated 12 th June 2026 reiterating what he deponed in his supporting affidavit and stating that the order by the court on 23 rd May 2026 constitutes a procedural ruling in which the court underscored the need for the respondent to be heard before any stay was considered, hence did not amount to a refusal of stay on merits.
28. The applicant contends that the distinction between assessment and taxation is one of vocabulary and not of executable effect. Whether the certificate be styled an auctioneer’s certificate of assessed fees or certificate of taxation, the same is not self-executing and must be reduced into a judgment and a decree extracted before any warrant can lawfully issue.
29. The applicant affirms that the court is not functus officio as they the applicant is seeking stay orders and not vary the ruling made on 19 th March 2026. The applicant undertakes to withdraw its application in the Court of Appeal should the current court grant orders of stay thereby obviating any conceivable risk of conflicting court orders. Further, the applicant argues that the High Court and the Court of Appeal are expressly empowered to entertain stay applications concurrently and the subordinate court is the natural forum for setting aside its own irregular process.
30. The applicant contends that they have not delayed in filing the application because when this Court delivered its ruling on 19 th March 2026, it granted a stay of execution and thus throughout that period they were protected. The applicant timeously lodged the Notice of Appeal on 31 st March 2026 and requested for the certified typed proceedings by letter of even date in full compliance with Rules 75 and 84 of the Court of Appeal rules. Between the lapse of the 30 days stay and the issue of the impugned warrants on 12 th May 2026, there was no real or apprehended threat of execution against them which required protection.
31. The Respondent contends that the law and procedure governing the recovery of an auctioneer’s assessed costs required the respondent to move the proper court for the entry of judgment; to have judgment so entered and to have a decree extracted under Order 21 of the Civil Procedure Rules by which time they would have filed their Memorandum of Appeal and lodged the Record of Appeal and could have in turn have applied for stay of execution pending appeal. As such, there was no exigency requiring them to prematurely saddle the court with a stay application before any executable instrument existed.
32. However, contrary to the expected procedure, the respondent extracted warrants of attachment and sale directly upon the strength of the ruling, backdated and concealed the proclamation hereby compressing their window for protective recourse to a matter of hours. The Applicant thus argued that the respondent precipitated and engineered the emergency that necessitated the current application hence should not complain as the Applicant did not anticipate the respondent’s unlawful shortcut to enable the applicant approach the court sooner. The Applicant contends that the application was filed three days after the service of the impugned warrants of attachment and proclamation notices, hence there was no delay. Further, the applicant states that it lodged its Memorandum of Appeal on 29 th May 2026 in compliance with rules 75 and 84 of the Court of Appeal Rules.
33. The applicant avers that the registered owner of the motor vehicle registration number KCL 953X offered by the respondent is Road Tracers Limited which is a separate corporate entity and not the respondent. The Applicant accused the respondent of attempting to underwrite his impecuniosity with an asset that is not his and with a bare assertion that the said vehicle is valued at over Kshs. 10 million yet it is unsupported by any valuation report, sale agreement, transfer document, charge, debenture or any other document. The Applicant thus contends that the respondent has failed to demonstrate any solvency, asset base, professional indemnity, insurance or other means to demonstrate that he can refund the reassessed sum of Kshs. 9,818,642/ should the appeal succeed. The applicant argues that the respondent’s counter demand of depositing the entire sum in a joint interest account in both counsels’ names is untenable as the impugned sum is excessive, unwarranted and improperly assessed. Requiring the deposit of the full sum in a joint account pre-empts the appeal and renders it an academic exercise. Further, the respondent has been holding their machinery as security since 13 th June 2022 and cannot now demand additional security. Additionally, they have offered to deposit the original log books and records of registration of the very vehicles attached. Further, the security exercise is anchored to the reassessed sum of Kshs. 9,818,642/- and the further sum of Kshs. 1,273,078.47/- demanded by the respondent is itself premature, irregular and illegal.
34. Parties disposed of the application by way of written submissions.
The Applicant’s Submissions
35. The applicant relies on the cases of Kidero vs Commissioner Investigations & Enforcement [2025] KECA 260 )KLR) and Stanley Kangethe Kinyanjui vs Tony Keter & 5 Others [2013] eKLR and submits that the High Court and Court of Appeal exercise concurrent and parallel jurisdictions in matters of stay pending appeal and the mere pendency of an application before the Court of Appeal does not divest the High Court of jurisdiction. The applicant further relies on Section 6 & 7 of the Civil Procedure Act and the case of Equity Bank Ltd vs West Link Mbo Ltd [2013] eKLR and submits that each of the three applications in the three different courts answer a different question on a different test under a different rule and therefore the danger of conflicting orders is logically excluded. The applicant expressly undertakes that should the instant court grant the stay sought, the application before the Court of Appeal in Civil application No. E253 of 2026 shall be withdrawn forthwith thereby eliminating any conceivable conflict.
36. On the issue of functus officio, the applicant relies on the case of Republic vs Public Procurement Administrative Review Board ex parte Utmost Insurance Brokers Limited & Goldfield Insurance Brokers Limited (Judicial Review Applications No.s E001 and E002 of 2026 [Consolidated]) and submits that the doctrine restrains a court from re-opening or revisiting the merits of a final decision already rendered but it does not extinguish residual jurisdiction to grant consequential and preservatory relief incidental to that decision.
37. Relying on the case of Vishram Ravji Halai vs Thorntom & Turpin (1963) Ltd [1990] KLR 365 , the applicant submits that they have met all the conditions for stay of execution to issue. On the issue of substantial loss, the applicant cites the cases of Butt vs Rent Restriction Tribunal [1979] KECA 22 (KLR) and James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) and argues that the substantial loss it stands to suffer is the irreversible loss of twelve units of heavy commercial machinery and once the said assets pass to third party purchasers at an auction, no order of the court can undo the dispossession. Further damages cannot put the applicant back in possession of the machinery that has been auctioned away and the respondent has not demonstrated that he is capable of paying such damages.
38. The applicant argues that the respondent’s reliance on the case of Kenya Shell Limited vs Kibiru & Another [1986] KLR 410 is misplaced as the case addressed itself to a money decree on the merits while the present case concerns the reassessment of an auctioneer’s bill of costs upon reference. Further, the applicant submits that it has demonstrated the respondent’s failure to show his ability to refund the decretal sum. The respondent’s own evidence, the logbook of motor vehicle registration number KCL 953X shows that the vehicle is registered to Road Tracers Limited, a separate corporate entity and not the respondent.
39. On the issue of unreasonable delay, the applicant submits that having filed its Notice of Appeal and requested for the proceedings within days of the ruling and the respondent having taken failed to convert the certificate into a decree before any executable instrument could come into being, there was no apprehended threat of execution between 19 th March 2026 and 12 th May 2026 against which it required protection. The Applicant submitted that a stay application before any executable instrument existed would have been premature and otiose. Further, the applicant submits that it filed the application three days after being served with the warrants and proclamation, thus no delay.
40. On the issue of security, the applicant has offered to deposit in court the original log books and records of registration of the very vehicles and machinery presently attached. The applicant further relies on the case of Muyuma vs Kaveva & Another [2025] KEELC 680 (KLR) and submits that no certificate of taxation is self-executing. The respondent never moved the proper court for the entry of the judgment upon the certificate of taxation, no judgment was entered and no decree was extracted. Further, the respondent’s reliance on Section 51(2) of the Advocates Act proves its case in fuller measure than the respondent appears to appreciate. Section 51(2) on its proper reading does not convert an advocate’s certificate of taxation into a decree by operation of law. Reliance was placed in the case of Ahmednasir Abdikadir & Company Advocates vs National Bank of Kenya Limited [2006] KEHC 2910 (KLR) ; Otieno Ragot & Company Advocates vs National Bank of Kenya [2022] KEHC 1164 (KLR) ; Andrew & Steve Advocates vs John Kibochi [2022] KEHC 13299 (KLR) and Amondi & Company Advocates vs County Government of Kisumu [2023] KEHC 20861 (KLR) and the applicant submits that if even an advocate’s certificate must be reduced to judgment by separate order before any warrant may lawfully issue, then a fortiori an auctioneer’s certificate must equally be so reduced.
Respondent’s Submissions
41. The respondent relies on the case of Independent Electoral and Boundaries Commission vs Kiai & 5 Others [2017] KECA 477 (KLR) and submits that the issue of stay of execution is res judicata as the court issued stay of execution on 19 th March 2026. As such, the court is functus officio. Further the respondent relies on Section 6 of the Civil Procedure Act and the cases of Kenya National Commission on Human Rights vs Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties) [2020] KESC 54 (KLR) ; Energy Regulatory Commission vs John Sigura Otido [2021] KECA 1060 (KLR) and Kemboi vs Chepkwony & 3 Others [2026] KECA 398 (KLR) and submits that the applicant is concurrently litigating the question of stay of execution of the decision rendered by this court on 19 th March 2026, before this court, the Chief Magistrate Court and the Court of Appeal. In particular, the issue of stay of execution pending appeal is concurrently being litigated before the current court and the Court of Appeal. Further, vide proceedings before the subordinate court in Chief Magistrates Court Misc. Application No. E149 of 2024, the applicant is presently enjoying interim status quo until 23/7/2026 when the court is to render a ruling on the applicant’s motion dated 20/5/2026. The kernel of the three applications before the subordinate and the superior courts concern the ruling of the High Court in the instant case. Thus, there is a likelihood of embarrassment in the event the two superior courts issue conflicting rulings.
42. Further, the Respondent submits that the applicant is forum shopping for favourable orders in an effort to defeat the decision of this court delivered on 19 th March 2026 to stop him from enjoying the fruits of successful litigation. The Respondent contends that the applicant has instituted multiple actions on the same subject matter against the same party on the same issues.
43. The respondent further submits that even where the Court of Appeal exercises its jurisdiction pursuant to Rule 5(2)(b) of the Court of Appeal rules contemporaneous with the High Court jurisdiction under Order 42 Rule 6 of the Civil Procedure Rules, it is not an invitation to abuse the court process by filing concurrent applications before both courts. Therefore, the imputation that the applications before either court anchor on different statutory provisions based on different legal tests is a fallacy that ought not to be countenanced.
44. The respondent relies on Order 42 Rule 6(2) of the Civil Procedure Rules and the case of Kenya Shell Ltd vs Kibiru & Another [1986] KLR 410 and argues that the impugned ruling is an appeal from a decision on assessment of the respondent’s bill of costs reassessing it from Kshs. 13,381,750/- to Kshs. 9,818,642/-.
45. The Respondent submitted that the decision itself decree on appeal and on its face is a direction and command to the applicant to pay the sum of money re-assessed therein as a money decree capable of execution within meaning of Section 2 of the Civil Procedure Act. The respondent further argues that execution of a money decree does not by itself connote substantial loss; that the applicant has not demonstrated inability to satisfy the decree; that the applicant has not shown the respondent would be unable to refund that decretal sum in the unlikely event the appeal succeeds; that the only means of preventing the sale is payment of the decree and that any prejudice arising from sale of the attached property is compensable by damages. Further, there is ongoing litigation concerning the attached goods in separate proceedings before the High Court thus the applicant has not sufficiently demonstrated substantial loss.
46. The respondent submits that he has demonstrated his ability to repay the decretal sum in the unlikely event that applicant’s appeal succeeds given that he is a seasoned auctioneer who has practiced for many years; has acquired substantial monetary and non- monetary assets through his profession and owns a Toyota Landcruiser valued at Kshs. 10million which is well capable of satisfying a refund in the improbable event the applicant’s appeal succeeds. Reliance has been placed in the case of Shabaz & 2 Others vs Deshpande [2025] KEHC 97 (KLR) .
47. On the issue of whether the application was filed timeously, the respondent submits that the impugned ruling was delivered on 19 th March 2026 and the instant application was filed on 22 nd May 2026 after execution was put in motion. The Respondent submitted that the applicant took over two months to file the present application which amounts to delay. Relying on the case of Patrick Wanyonyi Khaemba vs Teachers Service Commission, Board of Management, Kapletingi Mixed Day Secondary School & Francis Tanui [2019] KECA (KLR) , the respondent contends that parties ought not to wait to be prompted by execution in order to seek stay of execution pending appeal. On the issue of security, the respondent rejects depositing of original logbooks and depositing of registration documents as sufficient security as the decision rendered on 19/03/2026 constitutes a money decree to wit the applicant should be ordered to deposit the entire decretal sum in a joint interest earning account held in the names of the parties’ advocates.
Analysis and Determination
48. Having regard to the deposition of the Parties herein and the submissions by Counsel for the applicant and respondent in person, this Court distils the following to be the issues for determination in the instant Application;
a) Whether the pendency of an application for stay of execution under Rule 5 (2) of the Court of Appeal Rules ousts the jurisdiction of this Court (the High Court) to hear and determine an application under Order 42 Rule 6 (1) of the Civil Procedure Rules.
b) Whether this court is functus officio.
a) Whether the application has merit.
Whether the pendency of an application for stay of execution under Rule 5 (2) of the Court of Appeal Rules ousts the jurisdiction of this Court (the High Court) to hear and determine an application under Order 42 Rule 6 (1) of the Civil Procedure Rules.
49. The Applicant disclosed that there is a concurrent application of stay which has been filed and is currently pending before the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules where it has been certified urgent pending the constitution of a bench to hear the same.
50. The legal standpoint is that the High Court and the Court of Appeal can exercise concurrent jurisdiction in granting orders of stay of execution pending appeal. However, the fundamental question that this application raises is ‘ whether a party that has already approached the Court of Appeal for the temporary relief can still file a fresh application in the High Court seeking identical remedy as that pending before the appellate court.’
51. The Court of Appeal, has on many occasions, pronounced itself on the applicability of Order 42 Rule 6 (1) of the Civil Procedure Rules, both in its original and appellate jurisdiction. T
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1. In the Notice of Motion Applicatii22 nd May 2026 supported by the affidavit of the Applicant, LI JUNCHAO sworn on even date, the Applicant seeks orders that:
i) Spent
ii) Spent
iii) Spent
iv) THAT this Honourable Court be pleased to grant a stay of execution of the Ruling delivered on 19 th March, 2026 (Hon. Lady Justice F. Muchemi), the Orders and the Warrants of Attachment and Sale dated 12 May 2026 and the Proclamation of Attachment Notices No. 175 dated 15 May 2026, pending the hearing and determination of the Applicant's Appeal to the Court of Appeal against the whole of the Ruling and Orders of this Honourable Court delivered on the 19 March 2026.
v) THAT, in the alternative, and at the very least, this Honourable Court be pleased to grant a stay of execution of the said Ruling and Orders, and of the Warrants of Attachment and Sale dated 12 May 2026 and the Proclamation of Attachment Notices No. 175 dated 15 May 2026, pending the hearing and determination by the Court of Appeal of the Applicant's application in COACAPPL/E253/2026.
vi) THAT this Honourable Court be pleased to order that, as and for security for the due performance of such decree or order as may ultimately be binding upon the Applicant, the Applicant do deposit in Court the original log-books and records of registration of the motor vehicles and machinery presently attached and proclaimed under the Proclamation of Attachment Notices No. 175, the deposit whereof shall disable the Applicant from selling, transferring, charging, or otherwise alienating or dealing with the said vehicles and machinery pending the appeal, so that, taken together with the said machinery already in the Respondent's custody, the Respondent shall be fully secured; alternatively, such other security as this Honourable Court may, in its discretion, deem fit.
vii) THAT this Honourable Court be pleased to make such further or other Orders, give such directions, and grant such reliefs as the justice of the case may require.
viii) THAT the costs of and incidental to this Application be provided for.
2. In opposition to the application, the respondent filed a Replying Affidavit dated 8 th June 2026.
Applicant’s Case
3. The applicant deposes that the ruling delivered on 19 th March 2026 by this Court in favour of the respondent reassessed the sum of Kshs. 13,381,750/- to Kshs. 9,818,642. Leave to appeal and stay of execution of thirty days was granted by the Court.
4. The Applicant was dissatisfied with the said ruling hence filed the Notice of Appeal on 31 st March 2025 and applied for certified copies of proceedings and ruling which he was advised are currently proof read.
5. The applicant depones that the thirty days stay that was granted by the court on 19 th March 2026 lapsed. The respondent proceeded to cause warrants issue and proclamation of attachment notices no. 175 dated 15 th May 2026.
6. The applicant contends that a certificate of taxation is not self-executing and the respondent ought to have moved the court for entry of judgment upon the certificate of taxation being varied, to have judgment entered and the decree extracted under Order 21 of the Civil Procedure Rules before any warrant could lawfully issue. Further, the warrants of attachment and sale dated 12 th May 2026 relate to a decree passed on 19 th March 2026 yet what was delivered on 19 th March 2026 was an appellate variation order operating upon the taxation which is not an order that is capable of execution.
7. The applicant relies on Order 42 Rule 6 of the Civil Procedure Rules for the contention that the present court being the court whose ruling and orders of 19 th March 2026 are being appealed is best placed in the first instance to determine whether its decision should be stayed pending appeal and the mere pendency of an application in the Court of Appeal does not divest the instant court of jurisdiction.
8. The applicant further depones that they filed an application in the Chief Magistrate’s Court at Thika in Miscellaneous Civil Application No. E149 of 2024 to set aside the irregular warrants of attachment.
9. Further, application was lodged in the Court of Appeal in COACAPPL/E253/2026 for stay of execution to preserve the substratum pending the appeal against quantum in relation to the re-assessed taxation.
10. The Applicant thus contends that the three applications differ in forum, instrument, in ground and in relief and are therefore not sub judice .
11. The applicant further deposes that the application in the lower court, although filed on 21 st May 2026, remains unacted upon and the Court of Appeal is also yet to grant any stay; thus, the present court is the only court better positioned to protect them pending the inter parties hearing. The Applicant further depones that the Court of Appeal has certified the application as urgent and will soon constitute a bench to hear and determine it.
12. The applicant avers that unless the court intervenes, the respondent shall with effect from 22 nd May 2026 proceed to sell by public auction 12 units of its heavy commercial machinery. Once their machinery is carted away and sold to third party purchasers, no order of the court can undo the dispossession and the substratum of the application and pending appeal will be irretrievably dissipated and rendered nugatory.
13. The applicant asserts that the respondent is an auctioneer of no known or disclosed assets or substance and has no known means of refunding the impugned sum should it be paid and the appeal succeeds. The appeal would then be rendered nugatory and their money irrecoverable.
14. Further the applicant swore that the warrants of attachment and sale though issued on 12 th May 2026, were withheld and served upon them with the proclamation number 175 on 19 th May 2026, less than 72 hours before the seven-day proclamation period that was due to expire in 21 st May 2026 denying them the substance of the notice prescribed by Rule 12 of the Auctioneers Rules, 1997 and compressing its window for recourse to a bare matter of hours. Further, the respondent issued tax invoice no. 1579 of 12 th May 2026 in further sum of Kshs. 1,273,078.47 billing them afresh for proclamation, investigations, hired labour, hired transport and mileage in respect of machinery that has never left his custody and computing his commission of Kshs. 981,964.20 at 10% of the impugned figure.
15. The applicant underscores that they are ready, willing and able to abide by any conditions that the court may impose and offers to deposit in court the original log books and records of registration of the attached vehicles and machinery as security for the due performance of any decree or order ultimately binding upon it. The deposit of the said log books in court will disable them from selling, transferring, charging or in any manner alienating or dealing with the said vehicles and machinery pending the appeal.
The Respondent’s Case
16. The respondent deposes that the application is sub judice and amounts to forum shopping as the applicant has filed another application for stay of execution in the Court of Appeal.
17. Further, this Court on 23/5/2026 declined to grant any ex parte stay orders on the basis that Hon. Lady Justice Muchemi had already accorded the applicant leave to appeal and a stay of thirty days which had lapsed. The Respondent thus contends that the issue of stay of execution is res judicata ; Furthermore, since the Court of Appeal is already seized of the question of stay of execution, the present proceedings offend the doctrine of sub judice .
18. The respondent deposes that the applicant does not meet the threshold for grant of orders of stay of execution pursuant to Order 42 Rule 6 of the Civil Procedure Rules. He further states that he was instructed to execute warrants of attachment and sale against the applicant’s moveable property, which he carried out lawfully in accordance with standard practices and procedure provided for in the Auctioneer’s Act and rules.
19. Further, the Respondent swore that by dint of Rule 55(2), (3) & (4) of the Auctioneer’s Rules , auctioneer’s fees are assessed and not taxed whereas taxation is a preserve of proceedings before the High Court and falls within the purview of the Registrar. The Respondent contends that a magistrate’s court’s decision on assessment of fees is challenged on appeal and not through a reference, within the parlance of taxation. That consequently, the decision rendered on 19 th March 2026 was a decree unto itself and by implication on its face was a direction or command that the applicant pay the sum re-assessed and thus the order was capable of execution.
20. The respondent contends that whether the award rendered by this court on 19 th March 2026 was excessive, unwarranted, improperly assessed contrary to the provisions of the Fourth schedule to the Auctioneer’s Rules, the matter is now the preserve of the Court of Appeal and this Court is now functus officio on the issue. Further, execution is a lawful process of the court and thus neither shock, surprise nor consternation from the applicant would render the same unlawful.
21. The respondent reiterates that there exists no legal requirement under the Auctioneers Act or Rules obligating an auctioneer to move the court by way of notice of motion for entry of judgment in respect of auctioneer’s fees. The applicant improperly conflates the procedure governing auctioneer’s fees with that applicable to advocate’s fees under Section 51 of the Advocates Act. The contends that the applicant is currently enjoying status quo orders in Thika CMCC Misc. Application No. E149 of 2024 with respect to execution proceedings owing to the decision of this court rendered on 19 th March 2026 hence the continued sustenance of the instant application is likely to embarrass the court if conflicting orders are issued over the same subject matter.
22. The Respondent refuted the argument that Order 22 Rule 22(2) of the Civil Procedure Rules upon which the lower Court Application is premised, Order 42 Rule 6 of the Civil Procedure Rules upon which the current application is premised and Rule 5(2)(b) of the Court of Appeal Rules are distinct and mutually exclusive. The Respondent contends there is a likelihood of conflicting orders over the decree issued by this Court on 19 th March 2026 hence this court should down its tools.
23. The Respondent contends that the applicant ought to have moved this court immediately after its decision of 19 th March 2026 and asserted that the applicant is forum shopping for stay of execution orders before this court and before the Court of Appeal.
24. The respondent deponed that the execution of a money decree is not in itself proof of substantial loss. The respondent contends that the only way to purge any intended sale if stay is not granted is to settle the decree of this court issued on 19 th March 2026. In any event, the applicant is litigating over the attached goods vide High Court Thika Petition No. E023 of 2025 hence any prejudice that may be visited on the applicant if the sale of the attached property were to proceed can properly be mitigated by an award of damages.
25. Further, the respondent affirms that he is a seasoned auctioneer having practiced the trade, art and craft for a considerably long time and has consistently been successfully earning a living out of the trade. He further states that he has acquired various monetary and non-monetary assets. That he owns an Isuzu NPR Truck valued at over Kshs. 10 million which is more than capable of satisfying the decree if the appeal succeeds.
26. The respondent deposes that there has been unexplained and unreasonable delay by the applicant in approaching the court as the impugned decision was rendered on 19 th March 2026 and the applicant approached the present court on 22 nd May 2025, more than two months later, and only after being awoke by the execution process. He further avers that in the event the court grants stay of execution, the applicant should be ordered to deposit the entire decretal sum in a joint interest earning account in the names of both the advocates. Additionally, since 2022, the applicant has failed to settle the respondent fees and continues to forestall such payment by bogging the court with unnecessary litigation and applications. Thus, should the court allow the present application, he would be prejudiced personally and professionally.
27. The applicant filed a Further affidavit dated 12 th June 2026 reiterating what he deponed in his supporting affidavit and stating that the order by the court on 23 rd May 2026 constitutes a procedural ruling in which the court underscored the need for the respondent to be heard before any stay was considered, hence did not amount to a refusal of stay on merits.
28. The applicant contends that the distinction between assessment and taxation is one of vocabulary and not of executable effect. Whether the certificate be styled an auctioneer’s certificate of assessed fees or certificate of taxation, the same is not self-executing and must be reduced into a judgment and a decree extracted before any warrant can lawfully issue.
29. The applicant affirms that the court is not functus officio as they the applicant is seeking stay orders and not vary the ruling made on 19 th March 2026. The applicant undertakes to withdraw its application in the Court of Appeal should the current court grant orders of stay thereby obviating any conceivable risk of conflicting court orders. Further, the applicant argues that the High Court and the Court of Appeal are expressly empowered to entertain stay applications concurrently and the subordinate court is the natural forum for setting aside its own irregular process.
30. The applicant contends that they have not delayed in filing the application because when this Court delivered its ruling on 19 th March 2026, it granted a stay of execution and thus throughout that period they were protected. The applicant timeously lodged the Notice of Appeal on 31 st March 2026 and requested for the certified typed proceedings by letter of even date in full compliance with Rules 75 and 84 of the Court of Appeal rules. Between the lapse of the 30 days stay and the issue of the impugned warrants on 12 th May 2026, there was no real or apprehended threat of execution against them which required protection.
31. The Respondent contends that the law and procedure governing the recovery of an auctioneer’s assessed costs required the respondent to move the proper court for the entry of judgment; to have judgment so entered and to have a decree extracted under Order 21 of the Civil Procedure Rules by which time they would have filed their Memorandum of Appeal and lodged the Record of Appeal and could have in turn have applied for stay of execution pending appeal. As such, there was no exigency requiring them to prematurely saddle the court with a stay application before any executable instrument existed.
32. However, contrary to the expected procedure, the respondent extracted warrants of attachment and sale directly upon the strength of the ruling, backdated and concealed the proclamation hereby compressing their window for protective recourse to a matter of hours. The Applicant thus argued that the respondent precipitated and engineered the emergency that necessitated the current application hence should not complain as the Applicant did not anticipate the respondent’s unlawful shortcut to enable the applicant approach the court sooner. The Applicant contends that the application was filed three days after the service of the impugned warrants of attachment and proclamation notices, hence there was no delay. Further, the applicant states that it lodged its Memorandum of Appeal on 29 th May 2026 in compliance with rules 75 and 84 of the Court of Appeal Rules.
33. The applicant avers that the registered owner of the motor vehicle registration number KCL 953X offered by the respondent is Road Tracers Limited which is a separate corporate entity and not the respondent. The Applicant accused the respondent of attempting to underwrite his impecuniosity with an asset that is not his and with a bare assertion that the said vehicle is valued at over Kshs. 10 million yet it is unsupported by any valuation report, sale agreement, transfer document, charge, debenture or any other document. The Applicant thus contends that the respondent has failed to demonstrate any solvency, asset base, professional indemnity, insurance or other means to demonstrate that he can refund the reassessed sum of Kshs. 9,818,642/ should the appeal succeed. The applicant argues that the respondent’s counter demand of depositing the entire sum in a joint interest account in both counsels’ names is untenable as the impugned sum is excessive, unwarranted and improperly assessed. Requiring the deposit of the full sum in a joint account pre-empts the appeal and renders it an academic exercise. Further, the respondent has been holding their machinery as security since 13 th June 2022 and cannot now demand additional security. Additionally, they have offered to deposit the original log books and records of registration of the very vehicles attached. Further, the security exercise is anchored to the reassessed sum of Kshs. 9,818,642/- and the further sum of Kshs. 1,273,078.47/- demanded by the respondent is itself premature, irregular and illegal.
34. Parties disposed of the application by way of written submissions.
The Applicant’s Submissions
35. The applicant relies on the cases of Kidero vs Commissioner Investigations & Enforcement [2025] KECA 260 )KLR) and Stanley Kangethe Kinyanjui vs Tony Keter & 5 Others [2013] eKLR and submits that the High Court and Court of Appeal exercise concurrent and parallel jurisdictions in matters of stay pending appeal and the mere pendency of an application before the Court of Appeal does not divest the High Court of jurisdiction. The applicant further relies on Section 6 & 7 of the Civil Procedure Act and the case of Equity Bank Ltd vs West Link Mbo Ltd [2013] eKLR and submits that each of the three applications in the three different courts answer a different question on a different test under a different rule and therefore the danger of conflicting orders is logically excluded. The applicant expressly undertakes that should the instant court grant the stay sought, the application before the Court of Appeal in Civil application No. E253 of 2026 shall be withdrawn forthwith thereby eliminating any conceivable conflict.
36. On the issue of functus officio, the applicant relies on the case of Republic vs Public Procurement Administrative Review Board ex parte Utmost Insurance Brokers Limited & Goldfield Insurance Brokers Limited (Judicial Review Applications No.s E001 and E002 of 2026 [Consolidated]) and submits that the doctrine restrains a court from re-opening or revisiting the merits of a final decision already rendered but it does not extinguish residual jurisdiction to grant consequential and preservatory relief incidental to that decision.
37. Relying on the case of Vishram Ravji Halai vs Thorntom & Turpin (1963) Ltd [1990] KLR 365 , the applicant submits that they have met all the conditions for stay of execution to issue. On the issue of substantial loss, the applicant cites the cases of Butt vs Rent Restriction Tribunal [1979] KECA 22 (KLR) and James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) and argues that the substantial loss it stands to suffer is the irreversible loss of twelve units of heavy commercial machinery and once the said assets pass to third party purchasers at an auction, no order of the court can undo the dispossession. Further damages cannot put the applicant back in possession of the machinery that has been auctioned away and the respondent has not demonstrated that he is capable of paying such damages.
38. The applicant argues that the respondent’s reliance on the case of Kenya Shell Limited vs Kibiru & Another [1986] KLR 410 is misplaced as the case addressed itself to a money decree on the merits while the present case concerns the reassessment of an auctioneer’s bill of costs upon reference. Further, the applicant submits that it has demonstrated the respondent’s failure to show his ability to refund the decretal sum. The respondent’s own evidence, the logbook of motor vehicle registration number KCL 953X shows that the vehicle is registered to Road Tracers Limited, a separate corporate entity and not the respondent.
39. On the issue of unreasonable delay, the applicant submits that having filed its Notice of Appeal and requested for the proceedings within days of the ruling and the respondent having taken failed to convert the certificate into a decree before any executable instrument could come into being, there was no apprehended threat of execution between 19 th March 2026 and 12 th May 2026 against which it required protection. The Applicant submitted that a stay application before any executable instrument existed would have been premature and otiose. Further, the applicant submits that it filed the application three days after being served with the warrants and proclamation, thus no delay.
40. On the issue of security, the applicant has offered to deposit in court the original log books and records of registration of the very vehicles and machinery presently attached. The applicant further relies on the case of Muyuma vs Kaveva & Another [2025] KEELC 680 (KLR) and submits that no certificate of taxation is self-executing. The respondent never moved the proper court for the entry of the judgment upon the certificate of taxation, no judgment was entered and no decree was extracted. Further, the respondent’s reliance on Section 51(2) of the Advocates Act proves its case in fuller measure than the respondent appears to appreciate. Section 51(2) on its proper reading does not convert an advocate’s certificate of taxation into a decree by operation of law. Reliance was placed in the case of Ahmednasir Abdikadir & Company Advocates vs National Bank of Kenya Limited [2006] KEHC 2910 (KLR) ; Otieno Ragot & Company Advocates vs National Bank of Kenya [2022] KEHC 1164 (KLR) ; Andrew & Steve Advocates vs John Kibochi [2022] KEHC 13299 (KLR) and Amondi & Company Advocates vs County Government of Kisumu [2023] KEHC 20861 (KLR) and the applicant submits that if even an advocate’s certificate must be reduced to judgment by separate order before any warrant may lawfully issue, then a fortiori an auctioneer’s certificate must equally be so reduced.
Respondent’s Submissions
41. The respondent relies on the case of Independent Electoral and Boundaries Commission vs Kiai & 5 Others [2017] KECA 477 (KLR) and submits that the issue of stay of execution is res judicata as the court issued stay of execution on 19 th March 2026. As such, the court is functus officio. Further the respondent relies on Section 6 of the Civil Procedure Act and the cases of Kenya National Commission on Human Rights vs Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties) [2020] KESC 54 (KLR) ; Energy Regulatory Commission vs John Sigura Otido [2021] KECA 1060 (KLR) and Kemboi vs Chepkwony & 3 Others [2026] KECA 398 (KLR) and submits that the applicant is concurrently litigating the question of stay of execution of the decision rendered by this court on 19 th March 2026, before this court, the Chief Magistrate Court and the Court of Appeal. In particular, the issue of stay of execution pending appeal is concurrently being litigated before the current court and the Court of Appeal. Further, vide proceedings before the subordinate court in Chief Magistrates Court Misc. Application No. E149 of 2024, the applicant is presently enjoying interim status quo until 23/7/2026 when the court is to render a ruling on the applicant’s motion dated 20/5/2026. The kernel of the three applications before the subordinate and the superior courts concern the ruling of the High Court in the instant case. Thus, there is a likelihood of embarrassment in the event the two superior courts issue conflicting rulings.
42. Further, the Respondent submits that the applicant is forum shopping for favourable orders in an effort to defeat the decision of this court delivered on 19 th March 2026 to stop him from enjoying the fruits of successful litigation. The Respondent contends that the applicant has instituted multiple actions on the same subject matter against the same party on the same issues.
43. The respondent further submits that even where the Court of Appeal exercises its jurisdiction pursuant to Rule 5(2)(b) of the Court of Appeal rules contemporaneous with the High Court jurisdiction under Order 42 Rule 6 of the Civil Procedure Rules, it is not an invitation to abuse the court process by filing concurrent applications before both courts. Therefore, the imputation that the applications before either court anchor on different statutory provisions based on different legal tests is a fallacy that ought not to be countenanced.
44. The respondent relies on Order 42 Rule 6(2) of the Civil Procedure Rules and the case of Kenya Shell Ltd vs Kibiru & Another [1986] KLR 410 and argues that the impugned ruling is an appeal from a decision on assessment of the respondent’s bill of costs reassessing it from Kshs. 13,381,750/- to Kshs. 9,818,642/-.
45. The Respondent submitted that the decision itself decree on appeal and on its face is a direction and command to the applicant to pay the sum of money re-assessed therein as a money decree capable of execution within meaning of Section 2 of the Civil Procedure Act. The respondent further argues that execution of a money decree does not by itself connote substantial loss; that the applicant has not demonstrated inability to satisfy the decree; that the applicant has not shown the respondent would be unable to refund that decretal sum in the unlikely event the appeal succeeds; that the only means of preventing the sale is payment of the decree and that any prejudice arising from sale of the attached property is compensable by damages. Further, there is ongoing litigation concerning the attached goods in separate proceedings before the High Court thus the applicant has not sufficiently demonstrated substantial loss.
46. The respondent submits that he has demonstrated his ability to repay the decretal sum in the unlikely event that applicant’s appeal succeeds given that he is a seasoned auctioneer who has practiced for many years; has acquired substantial monetary and non- monetary assets through his profession and owns a Toyota Landcruiser valued at Kshs. 10million which is well capable of satisfying a refund in the improbable event the applicant’s appeal succeeds. Reliance has been placed in the case of Shabaz & 2 Others vs Deshpande [2025] KEHC 97 (KLR) .
47. On the issue of whether the application was filed timeously, the respondent submits that the impugned ruling was delivered on 19 th March 2026 and the instant application was filed on 22 nd May 2026 after execution was put in motion. The Respondent submitted that the applicant took over two months to file the present application which amounts to delay. Relying on the case of Patrick Wanyonyi Khaemba vs Teachers Service Commission, Board of Management, Kapletingi Mixed Day Secondary School & Francis Tanui [2019] KECA (KLR) , the respondent contends that parties ought not to wait to be prompted by execution in order to seek stay of execution pending appeal. On the issue of security, the respondent rejects depositing of original logbooks and depositing of registration documents as sufficient security as the decision rendered on 19/03/2026 constitutes a money decree to wit the applicant should be ordered to deposit the entire decretal sum in a joint interest earning account held in the names of the parties’ advocates.
Analysis and Determination
48. Having regard to the deposition of the Parties herein and the submissions by Counsel for the applicant and respondent in person, this Court distils the following to be the issues for determination in the instant Application;
a) Whether the pendency of an application for stay of execution under Rule 5 (2) of the Court of Appeal Rules ousts the jurisdiction of this Court (the High Court) to hear and determine an application under Order 42 Rule 6 (1) of the Civil Procedure Rules.
b) Whether this court is functus officio.
a) Whether the application has merit.
Whether the pendency of an application for stay of execution under Rule 5 (2) of the Court of Appeal Rules ousts the jurisdiction of this Court (the High Court) to hear and determine an application under Order 42 Rule 6 (1) of the Civil Procedure Rules.
49. The Applicant disclosed that there is a concurrent application of stay which has been filed and is currently pending before the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules where it has been certified urgent pending the constitution of a bench to hear the same.
50. The legal standpoint is that the High Court and the Court of Appeal can exercise concurrent jurisdiction in granting orders of stay of execution pending appeal. However, the fundamental question that this application raises is ‘ whether a party that has already approached the Court of Appeal for the temporary relief can still file a fresh application in the High Court seeking identical remedy as that pending before the appellate court.’
51. The Court of Appeal, has on many occasions, pronounced itself on the applicability of Order 42 Rule 6 (1) of the Civil Procedure Rules, both in its original and appellate jurisdiction. T
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