https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8323

Okoth v Sukari Industries Ltd (Civil Appeal E054 of 2023) [2026] KEHC 8323 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 8323 (KLR) Republic of Kenya In the High Court at Migori Civil Appeal E054 of 2023 ACA Ong’injo, J June 4, 2026 Between Anjelina Adhiambo Okoth Appellant and Sukari Industries Limited Respondent Ruling 1.The Respondent brought application dated 19th December 2025 under Rules 12 a, b, c, Rules 55 Of The Auctioneers Rules 1997 & 4th Schedule of the Auctioneers { Amendment } Rules of 2009, Order 22, 57, 58 & 75, 40 Rules 1, 4 of the Civil Procedure Rules, Section 14, 1B and 3A of the Civil Procedure Act, Cap 21 Laws of Kenya and all enabling Provisions of the Law seeking that pending the hearing and determination of this application inter partes, an order do issue restraining the Defendants/Respondents either by themselves, their servants and/or agents from transferring ownership of Motor vehicle Registration KCS 073B to the interested party or any other party;1.That pending the hearing and determination of this application inter partes, an order of Temporary Injunction do issue restraining the Defendants/Respondents either by themselves, their servants and/or agents, or another party from interfering with the Applicant's possession of Motor vehicle of Registration KCS 073B.2.That pending the hearing and final determination of this suit, an order do issue declaring the sale of Motor vehicle of Registration KCS 073B on 11th December 2025 illegal and irregular.3.That an order do issue setting aside the sale of Motor vehicle of Registration KCS 073B on 11th December 2025 illegal and regular.4.That an order do issue directing the Respondents to refund the Applicant the Value of the motor Vehicle KCS 073B.5.That costs of this Application be provided for. 2.The application is supported by the averments set in the annexed affidavit of Stephen Ougo sworn on 12th December 2025, and on the grounds on its face.In opposition to the application the 1st Respondent swore Replying Affidavit dated 12th January 2026 3.The application was canvassed by way of written submissions. The Applicant’s submissions are to the effect that the Respondents without any Certificate of Costs, Decree or Warrants of Attachment on 11th December 2025 actuated by malice attached and sold the Applicants motor vehicle of registration KCS 073B. The 2nd respondent attached and sold the Applicant’s motor vehicle in recovery of his costs of Kshs. 53,638. That prior to the attachment and sale of the Applicant’s motor vehicle of registration number KCS 073B the Applicant was never served with any Notices, proclamation or Warrants. That to compound the irregularity the Respondents acted without any compliance to the Statutory Procedures as set out in Auctioneers Rules and Civil Procedure Rules. That the Respondents were so reckless and negligent that they cared not to check that they had no Execution documents before the attachment and sale of the Applicants Motor Vehicle for recovery of their costs of Kshs 53, 636. That the illegal and irregular sale has already caused the Applicant irreparable loss and damage. 4.It is the Applicants contention that the conduct of the 1st Respondent instructing the 2nd Respondent to sell the Applicants motor vehicle of registration number KCS 073B without a valid decree, warrant or serving it neither with the requisite statutory Notices; nor the Auctioneer notices as required by law. 5.Further, it is the Applicant’s case that the 2nd Respondent on the instructions of the 1st Respondent, arbitrarily proceeded to sell the suit property, without the service of the above documents or advertisement. 6.That in its replying affidavit, the 1st Respondent has annexed some copies of the Certificate of costs and proclamation for Kshs. 145, 250. At paragraph 18 of the Replying Affidavit, the 1st Respondent has admitted that “no further steps were made in execution of the costs in this matter and that as such, there couldn’t have been any attachment and or sale of any of the Applicant’s properties whatsoever in respect of this matter.” 7.However, the Applicant has contended that the 1st Respondent has failed to respond to their annexure 4 in support of their application dated 19th December 2025 in which the 2nd Respondent had written a letter to the Deputy Registrar captioning the matter in question and referencing Warrant of Attachment issued herein and further informing the court that they had sold the Applicants motor vehicle on 11th December 2025. 8.The Applicant submitted that there were no valid warrants in the matter herein and therefore the 2nd Respondent had no locus to attach and sell the Applicants motor vehicle as indicated in their letter dated 11th December 2025 addressed to the Deputy Registrar. 9.That from a scrutiny of the letter issued to the Deputy Registrar the 1st Respondent was copied in all communications as the instructing client. It is not disputed that a party has a right to execute however, in exercising their right they ought to follow due process and procedures laid down in law. That in the Matter before this court it was evident that the 1st and 2nd Respondent misinformed the court through their letter and disregarded the law in their actions leading to the sale of the Applicants Motor Vehicle. 10.The Applicant argued further that the 1st Respondent was a holder of Warrant of Attachment for Kshs. 145, 250 which amounts the Applicant settled. Leaving the 2nd Respondents costs which were in dispute. 11.The Appellant quoted the Auctioneers Rules under Rule 55(3) which provides as follows:“In any other case where a dispute arises as to the amount of fees payable to an auctioneer a magistrate or the Board may, on the application of any party to the dispute, assess the fees payable” 12.According to the Applicant it is trite law that disputed auctioneer’s fees are subjected to the court for assessment as per Rule 55(3) above and in the matter of Ngethe t/a Principal Auctioneers v Directline Assurance Company Limited (Commercial Miscellaneous Application E690 of 2022) [2024] KEHC 6705 (KLR) (Commercial and Tax) (24 May 2024) (Ruling) where the court was tasked with the duty to assess the auctioneers disputed Bill of Costs. 13.It was argued that the 1st and 2nd Respondents knowingly, intentionally and maliciously ignored the law and proceeded to sell the Applicants motor vehicle in settlement of the Auctioneers disputed fees. 14.It was also submitted that the Respondents did not apply for any warrants from the court before the sale of the Applicant’s property and as such infringed the procedure provided for under Rule 5 of the Auctioneers Rules. 15.The Applicant drew the courts attention to the fact that there were no warrants of execution issued in the matter herein and therefore the 2nd Respondent’s actions amount to an irregularity and illegality in law and as such they should not be allowed to benefit from the same. 16.The Applicant urged the court to ask itself if there was a valid decree and secondly if an execution can commence without the existence of a valid decree and relied on the holding in the case of Rubo Kimngetich Arap Cheruiyot v Peter Kiprop Rotich [2006] eKLR in which Justice M.K Ibrahim stated that “No execution can take place without a decree, preliminary or final.” 17.The Applicant argued that upon perusal of the affidavit in support of the application and the replying affidavit it is evident that there was no pending decree in the matter. It is not disputed that the 1st respondent was holder of a decree of Ksh 145,600 which was paid by the Applicant despite the payment of decretal award the Respondent proceeded to attach and sale the Applicants motor vehicle. 18.The Applicant similarly relied on the case of “Hezron Getuma Onsongo t/a Hegeons Auctioneers (Miscellaneous Civil Application E150 of 2023) [2025] KEHC 13443 (KLR) to support its position where Justice R Nyakundi (29 September 2025) (Ruling) Neutral citation: [2025] KEHC 13443 (KLR) stated:-“Where a decree has been passed against a firm, execution may be granted” 19.It was submitted that in the matter herein no decree was issued and as such execution could not be possible and the execution by the Respondents was not only irregular but illegal. 20.On whether the Respondents followed due procedure in the action of attaching and selling the Applicants motor vehicle the Applicant answered in the negative and relied on the holding by Justice Magare in the matter of Joel Titus Musya t/a Makuri Auctioneers v Africa Banking Corporation Limited (Miscellaneous Application 68 of 2018) [2023] KEHC 23038 (KLR)(20 September 2023) where the ruling discussed the procedure laid out under rule 15 of the Auctioneers Rules before proceeding to dismiss the reference before him with costs for failure to follow the laid down procedure. 21.The Applicant also cited the holding in Wanjala v Walukhuchi & 3 others (Environment & Land Case 177 of 2013) [2023] KEELC 21540 (KLR) (16 November 2023) (Ruling) where the procedure to be followed by an auctioneer at the point of attachment was extensively discussed and the court stated as follows:“That the attachment and sale of the eight heads of cattle of the Applicant was not carried out in accordance with section 13 of the Auctioneers Act. The Law required the Auctioneer to first issue a proclamation detailing the value and description of the four cows. Thereafter the auctioneer was required to issue the Sale Form 3 and after the expiry of the 72 hours, remove the eight cows and store them. This was to be followed with the appropriate advertisement for the auction and the auction itself. This procedure was not followed and the Applicant cannot be faulted for reading mischief in the way the whole process was conducted. That flowing from the finding in (18) above, the sale of the four cows by the auctioneer was done without following the due process and therefore was illegal and irregular” 22.The Applicant further relied in the matter of Wanjigi & another v Bank of Africa Kenya Ltd & 2 others (Civil Case 237 of 2014) [2015] KEHC 6971 (KLR) (Commercial & Admiralty) (13 March 2015) (Ruling) in which the Honourable Justice E. K. O. OGOLA stated as follows before proceeding to set aside the sale and order that the 3rd defendant in the matter being the buyer be reimbursed all the money used in the purchase of the property.“As I finish I want to re-emphasise the fact that the 1st Defendant’s right to realize security cannot be fettered or frustrated any longer. The current proceedings were brought about by the unlawful conduct of the Auctioneer, the 2nd Defendant herein. If the auctioneer just did the right thing the 1st Defendant would have by now realized its security. With that observation in mind, I make the following orders.” 23.The Applicant argued that the Respondents did not hold a valid decree for execution, they did not hold a valid warrant of execution to necessitate the attachment of the applicant’s motor vehicle, they did not effect service of any statutory notice, they did not cause the same t be advertised and as such the court has the power, mandate and jurisdiction to set aside the sale of the Applicant’s motor vehicle for the following reasons:-Order 22 rule 58 reads as follows:“ 58.Time of sale [Order 22, rule 58] Save in the case of property of the kind described in the proviso to rule 37, no sale hereunder shall without the consent in writing of the judgment-debtor, take place until after the expiration of at least thirty days in the case of immovable property, and of at least fifteen days in the case of movable property, calculated from the date on which the copy of the public notice has been affixed in the precincts of the court of the judge ordering the sale “ 24.It is the Applicants application and submission that the procedure followed in the attachment and sale of its motor vehicle was irregular and illegal, facts which the respondent has not denied. In her replying affidavit the respondent has intentionally neglected to address the question of illegality and irregularity of its actions and instead stated that the application has been overtaken by events. 25.As submitted above the attachment and sale of the said motor vehicle was illegal on the grounds that firstly the Respondents were not holders of valid decrees for execution secondly they were not holders of the any warrants of attachment, thirdly they were not holders of proclamation notices, fourth no documents were served upon the applicant in reference to the matter in requisition, fifth the respondents failed to adhere to the civil procedure rules requirements of execution by auction as outlined in rule 22 (57) & (58) of the Civil Procedure Rules. 26.It is noteworthy that despite the requisite documentation the Respondent proceeded to attach and sale the Applicants motor vehicle. Similar facts arose in the matter of David Senema t/a Senema Africa Auctioneers v G4S Kenya Limited (Civil Appeal E095 of 2023) [2025] KEHC 6290 (KLR) (26 March 2025) (Judgment) where the Honourable Justice Magare found that the auctioneers actions of attachment and sale of the Respondents motor vehicle after the decree award had been settled to be unlawful and ordered the Applicant before him to reimburse the costs of sale of the motor vehicle and stated that the Respondent was at liberty to institute recovery proceedings. 27.The Applicant also drew the court’s attention to the matter Wanjigi & another v Bank of Africa Kenya Ltd & 2 others (Supra) in which the Honourable Court ordered “The Public Auction staged for the sale of the suit property on 3rd June 2014 and all the consequences arising therefrom are hereby set aside” 28.In reference to the Respondent’s response it is evident that the 2nd Respondent sold the Applicants motor vehicle without following due procedure as there is no evidence that has been placed before this court to indicate that the Applicants motor vehicle was advertised in the newspaper before it was sold in realization of the auctioneers costs in the matter before this Honourable court. 29.The Applicant urged the court to declare that the Respondent’s actions of selling the Applicants motor vehicle as illegal. 30.The 1st Respondent’s submissions are dated 2nd February 2026 and are to the effect that the Applicant’s Notice of Motion dated 19th December 2025 is misconceived, incompetent, and a gross abuse of the court process as it seeks to reopen a lawfully concluded execution process, after costs were taxed, certified, execution commenced, stay applications dismissed, and costs admitted to have been settled. 31.That the Court is functus officio and the orders sought are overtaken by events, the execution process was lawful at every stage, and the application is further vitiated by the unlawful joinder of parties without leave of Court. 32.The 1st Respondent identified the following issues for determination:-i.Whether this Court is functus officio,ii.Whether the execution process was lawful from taxation to settlement,iii.Whether the application is overtaken by events,iv.Whether the application amounts to abuse of court process and forum shopping,v.Whether the joinder of the 2nd and Interested Third Party was lawful,vi.Whether the Applicant has met the legal threshold for stay or interference with execution and,vii.Who should bear the costs of the application? 33.On whether the court is functus officio, the 1st Respondent submitted that once a court has fully exercised its jurisdiction and a matter has been conclusively determined, it lacks jurisdiction to reopen it. 34.The holding in Raila Odinga & 2 Others –v- Iebc & 3 Others [2013] eKLR, was cited where the Supreme Court held that the doctrine of functus officio prevents a court from re-litigating issues that have already been finally determined. 35.The 1st Respondent similarly relied on the holding in Jersey Evening Post Ltd -v-al Thani [2002] JLR 542, where the Court stated that a court becomes functus officio once it has performed all its duties in respect of a matter. 36.That in the present case:i.Costs were taxed on 30.06.2025,ii.A Certificate of Costs was issued on 22.07.2025,ii.Multiple stay applications were heard and dismissed on 06.11.2025,iii.The alleged sale of the Respondent’s Motor Vehicle was never in respect of satisfaction of the decree herein since by that time, the decree herein had been settled. 37.The 1st Respondent has argued that the court had fully discharged its mandate and it cannot revisit or vary a concluded execution process. That the present application is a nullity for want of jurisdiction. 38.On whether the execution process from taxation was settled it was submitted that lawful taxation of costs was done by the Taxing Master on 30.06.2025 in the presence of the Applicant’s Advocate. That the taxation was conducted pursuant to the Advocates Remuneration Order. 39.The 1st Respondent submitted that Under Rule 11 of the Advocates Remuneration Order, a party dissatisfied with taxation must file a reference within 14 days but the Applicant never filed any reference. 40.Reliance was place in the case of Machira & Co Advocates -v-magugu [2012] eKLR, where the Court held that where no reference is filed, the taxed costs become final and binding. 41.It further was submitted that upon lapse of the statutory stay and absence of any challenge, the Respondent lawfully obtained a Certificate of Costs dated 22.07.2025 pursuant to Section 94 of the Civil Procedure Act. 42.That in Kipkorir, Titoo & Kiara Advocates –v-deposit Protection Fund Board [2005] eKLR, the Court of Appeal affirmed that a Certificate of Costs is final as to the amount payable unless set aside or varied. The 1st Respondent submitted that the assessed costs were neither set aside nor varied. 43.According to the 1st Respondent the Applicant sought and was granted 30 days stay on the date of taxation. No execution step was taken during that period. That upon lapse of the stay and in the absence of payment or challenge, the Respondent was entitled to execute. That while the Appellant, through the 2nd Respondent, proclaimed the Applicant’s motor vehicle referred to herein, the same was never attached and/or sold in satisfaction of the decree in this Appeal since before the attachment and sale, the decree had been settled. The 1st Respondent submitted that there is no evidence at all produced by the Applicant that the motor vehicle was sold in satisfaction of the decree in this matter. 44.The 1st Respondent further submitted that the Auctioneer was lawfully instructed, and a proclamation was issued, however no attachment was carried out in respect of the decree herein, no sale occurred in respect of the decree herein and, execution ceased upon settlement of costs which was done way before the impugned sale. 45.The 1st Respondent argued that execution was initiated strictly in compliance with Order 22 of the Civil Procedure Rules even though it never culminated to sale of the Applicant’s property. The Applicant had settled the decree by Bank transfer. 46.While arguing that no illegality or irregularity has been demonstrated the 1st Respondent relied on the case of National Industrial Credit Bank Ltd V Aquinas Francis Wasike & Another [2006] eKLR, where the Court of Appeal held that execution founded on a valid decree or certificate of costs is lawful unless shown to be irregular or illegal. 47.On whether the application is overtaken by events it was submitted that courts do not act in vain. The 1st Respondent cited the holding in Nicholas Kiptoo Arap Korir Salat –v- Iebc & 7 Others [2014] eKLR, where the Supreme Court held that courts should not issue orders that serve no practical purpose. 47.It was submitted that there was no pending execution, no attachment, and no sale to be stayed or reversed and therefore the application is moot and academic. 48.On whether the application amounts to an abuse of court process and forum shopping, the 1st Respondent cited the holding in Muchanga Investments Ltd –v- Safaris Unlimited (africa) Ltd & 2 Others [2009] eKLR, where the Court of Appeal defined abuse of court process to include repeated applications over the same subject matter after determination. 49.It was submitted that the Applicant has filed multiple stay applications over the same taxed costs, filed similar applications across Migori HCCA Nos. E054–E058 of 2023, gone mute amidst being aware of all the execution steps in the then unsettled matters (HCCA No.57 and 58) until sale then, returned to court after dismissal and settlement. 50.It was argued that this conduct is vexatious and intended solely to delay the Respondent’s enjoyment of the fruits of judgment. 51.On whether the joinder of the 2nd Respondent and the Interested Party was lawful it was submitted that under Order 1 Rule 10(2) of the Civil Procedure Rules, joinder of parties can only be done with leave of Court. 52.In Trusted Society Of Human Rights Alliance –v-mumo Matemu & 5 Others [2014] eKLR, the Supreme Court held that joinder is discretionary and not a matter of right. 53.The Applicant unilaterally enjoined the 2nd Respondent and Interested Party without leave of the Honorable Court. This procedural defect is fatal and renders the application incompetent. 54.On whether the Applicant has met the legal threshold for stay or interference with execution, it was submitted that under Order 42 Rule 6 of the Civil Procedure Rules, an Applicant must demonstrate substantial loss, promptness, and security.In Butt –v- Rent Restriction Tribunal [1982] KLR 417, the Court emphasized these requirements. 55.The Applicant demonstrated none. In any event, execution had already been lawfully carried out and concluded. The subsequent steps founded on the legal process are thus equally lawful requiring no interference. 56.On who should bear the cost, it was submitted that under Section 27 of the Civil Procedure Act, costs follow the event. Given the Applicant’s conduct, costs should be awarded to the Respondent.The 1st Respondent respectfully prayed that this Court:1.Finds that the execution process was lawful from taxation to settlement.2.Finds that the Court is functus officio,3.Finds that the application is overtaken by events,4.Finds that the application amounts to abuse of court process,5.Finds that the joinder of the 2nd Respondent and Interested Parties was unlawful,6.Dismisses the Notice of Motion dated 19th December 2025 with costs to the 1st Respondent 57.The 2nd Respondent’s submissions are that the Applicant was aware that warrants of Attachment and Sale were all valid at the time of execution therein and the same have been annexed for the court to see and verify. 58.It was submitted that extension of warrants due to prolonged stay of execution granted, is provided for under Rule 12 (4) of the Auctioneer's Rules 1997 (Rev. 2017) as follows:-Where orders obtained by a Judgment Debtor staying execution and served on an auctioneer are subsequently vacated, the auctioneer shall:a.Where the warrants of attachment and sale, or letter of instruction, are still valid, proceed with execution in compliance with these rules,b.Where the warrants of attachment and sale have expired, apply for extension of warrants for a period not exceeding forty days, within which he shall finalize executionc.Where fresh warrants of attachment and sale or letter of instructions is issued with new figures proceed in the manner provided in these Rules in respect of a fresh warrant". 59.The 2nd Respondent further submitted that there was warrant of attachment where the date for the decree being executed was inadvertently indicated by the court as 30th July, 2023 in place of 30th August, 2025. 60.The 2nd Respondent argued that it is not clear what the Auctioneer or the Respondents have to do with and how the same will affect the public auction which took place on the 12th December, 2025. It was submitted that the Applicant was on fishing expedition never seen before. 61.The 2nd Respondent while referring to Section 45 of the Civil Procedure Act Cap 21 Laws of Kenya which provides:-Seizure of Property in dwelling-house-: No person in executing any process under this Act directing or authorizing seizure of movable property shall enter any dwelling-house after sun set and before sunrise". 63.It was argued that the same Section is in relation to an attachment in a dwelling-house and cannot be inferred to the attachment of a moving motor vehicle on the road and cannot be used to attempt to nullify a valid sale.(1)of the Auctioneers' Rules 1997 (Rev. 2017)- Subject to Order 21 Rules 62, 63, 65, 66, 68 and 69 of the Civil Procedure Rules (Cap. 21, sub. Leg.) a public auction shall take place-a.Of goods seized or repossessed under any contract or any written law between the hours of10.00am and 6.00pm, or b, In other sales between the hours of 10.00am and 10,00pm and in either event 64.In regard to the issue of Notification of Sale the 2nd Respondent reiterated that a Notification of Sale in Migori High Court Civil Appeal No. E057 and E058 all of 2023 were issued to the driver of the motor vehicle at the time of attachment on the 1st December 2025 and the Auctioneer had no other obligation to issue any other Notice, but again out of courtesy which is now being exploited by the Applicant sent an Email to the Applicant on the 10th December 2025 reminding them of the impending auction which cannot be construed to replace a properly served Notification of Sale issued earlier. The email which enclosed the newspaper advert reads, "Forwarded herein are details of the impending public auction scheduled on 11th December, 2025. By this letter you are duly informed of the foregoing". This was 10 days after vehicle was attached and one wonders whether the Applicant was not even aware the vehicle was attached until they realized it was sold. 65.Concerning the Applicant’s complaint against the 2nd Respondent the court was invited to look at what the law says; in Rule 12 (f) of the Auctioneers' Rules 1997 (Rev. 2017)- and find that the date fixed for auction should not be earlier than seven days to auction date, in this case advertisement appeared on 4th December 2025 and auction took place on the 12th December 2025. That is 8 eight days from the date of auction. That the advertisement fully conformed to the law in Migori High Court Civil Appeal No. E057 and E058 all of 2023 67.On whether proceeds of the sale was properly handled it was submitted that Rule 18 (4) of the Auctioneers' Rules 1997 (Rev. 2017) provides that the Auctioneer shall remit the proceeds of sale less his charges to the court or the instructing party, as the case may be, accompanied by an itemized account in the case of movable property within 15 days of the sale and in case of immovable property as provided under Order 22, Rule 70 of the Civil Procedure Rules (Cap, 21 Sub, Leg)". 68.The 2nd Respondent contended that there is no requirement by the law for the Auctioneer to file his bill for taxation, any aggrieved party can file the auctioneer's bill in this file to be placed before the Deputy Registrar for taxation. As it is the auctioneer's bill has already been filed in this file and the same can be placed before the DR for taxation. 69.It was concluded that the sale of motor vehicle registration mark KCS 073B was done in two files only and the Applicant is aware of the same that is Migori High Court Civil Appeal No. E057 and E058 all of 2023. This application can only be relevant to the extent that the 2nd Respondent deducted his costs from the excess proceeds in this file which can be resolved by DR taxing the bill already in the court file and this has no bearing to the process of sale to warrant staying transfer of the sold motor vehicle.The court was urged to dismiss the application with costs. Analysis and determination 70.Having considered the application herein together with the grounds upon which it is premised and the supporting affidavit and having equally considered the Replying Affidavits and respective submissions by the parties the issues that arise for submissions are:-a).Whether the execution process was legal based on the material presented before the court.b).Whether mandatory provisions governing execution against movable property was complied withc).If the execution process was in pursuit of the 1st Respondent’s costs ot the Auctioneers costsd).Whether the Auctioneers costs were assessed and or agreed upon to warrant taking out of warrants for execution. 71.The Applicant appears to have established an arguable case that the attachment and sale may not have complied with the mandatory procedural requirements governing execution against movable property. 72.From the material presented by the parties in court several matters stand out. First, there is a notable inconsistency in the 1st Respondent’s Replying Affidavit. On one hand, the 1st Respondent annexes a certificate of costs, proclamation notice and details of execution steps allegedly undertaken in pursuit of taxed costs of Kshs. 145,250/=. On the other hand, at paragraph 18 of the Replying Affidavit, the 1st Respondent expressly states that after payment of the taxed costs “no further steps were made in execution for settlement of the costs in this matter and that as such, there couldn’t have been any attachment and or sale of any of the Applicant’s properties whatsoever in respect of this matter.” That deposition substantially weakens the Respondents’ position because the Applicant has exhibited correspondence allegedly authored by the 2nd Respondent notifying the Deputy Registrar that the motor vehicle had in fact been sold. This court considers that contradiction as significant and puts the actions of the 2nd Respondent into questions as far as the process is concerned. If the Applicant had paid the assessed costs for what was the execution being levied and with whose permission? 73.Second, if indeed the taxed costs of the 1st Respondent had already been settled on 5th November 2025, then the execution foundation for further attachment in the present file becomes doubtful unless there existed, a valid subsisting warrants of attachment for the Auctioneers costs, a decree or certificate capable of execution, assessed auctioneer’s fees, and compliance with the Auctioneers Rules and Order 22 of the Civil Procedure Rules. 74.The Applicant’s contention that the Auctioneer proceeded to realize unassessed auctioneer’s charges is legally weighty. Rule 55(3) of the Auctioneers Rules contemplates assessment by the court where fees are disputed. An Auctioneer cannot ordinarily unilaterally levy disputed fees through attachment and sale without prior assessment. Courts have repeatedly held that Auctioneer’s charges, once disputed, must first be taxed or assessed before recovery proceedings can properly issue. 75.Third, the allegations regarding absence of warrants, proclamation, notification of sale and statutory notices in respect to the Auctioneers costs raise substantial procedural concerns. Under: Rule 12 of the Auctioneers Rules and Order 22 Rules 51–58 of the Civil Procedure Rules, execution against movable property is highly regulated. Failure to issue or serve proclamation notices, notification of sale, or to observe statutory waiting periods may render the attachment and sale irregular or even unlawful, if the Applicant proves that there were no valid warrants in force, no proclamation was served, no notification of sale was issued, and no public notice period observed, then the sale would be vulnerable to being set aside for material procedural irregularity. 76.The 2nd Respondent referenced “warrants issued herein” in correspondence to the Deputy Registrar, yet the Respondents have not clearly exhibited the specific warrants under which the sale of KCS 073B was conducted on 11th December 2025. 77.The plea of functus officio by the Respondents is, however, cannot be sustained as courts retain residual jurisdiction to interrogate the legality or regularity of execution processes undertaken under their authority. A court is not functus officio merely because execution has occurred where allegations of illegal or irregular execution are raised. 78.On balance of probability this court finds that the Applicant has demonstrated that the execution process was illegal and/ or irregular. The Respondents’ explanation of the sale is inconsistent and there is obvious non-compliance with mandatory execution procedures. There is also a credible complaint that Auctioneer’s fees were recovered before assessment. 79.In the circumstances this court sets aside the sale to the Interested Party as illegality has been proved by the Applicant. The proceeds of the sale to be returned to the Interested party by the Auctioneer. 80.Each party to bear their own costs of the application. This ruling to apply to HCCA E055, E056, E057 and E058 all of 2023. Orders accordingly. DATED, SIGNED AND DELIVERED AT MIGORI, THIS 14TH DAY OF MAY, 2026.ANNE ONG’INJOJUDGE