https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8735

Okerio v Ongari (Civil Appeal E148 of 2023) [2026] KEHC 8735 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8735 (KLR) Republic of Kenya In the High Court at Kisii Civil Appeal E148 of 2023 AM Okutoyi, J June 18, 2026 Between Edward Nyagechi Okerio Appellant and Jared Moreka Ongari Respondent (An appeal from the Ruling of the Honourable W. Kugwa (RM) delivered and Dated 22nd day of November, 2023 in Kisii Chief Magistrates Civil Case Number 329 of 2020) Judgment Introduction 1.This appeal emanates from the ruling by Hon. W. Kugwa delivered on 22nd November 2023 on the appellant’s application dated 24th October 2023 seeking setting aside of warrants of attachment of moveable property in execution of decree of money and warrants of sale of property in execution of decree for money issued on 11th October 2023 on the grounds that the same were obtained unprocedurally, irregularly and illegally. 2.At the hearing of this application at the trial court, the appellant stated that he was served with unfiled Bill of Costs dated 10th September 2023 and efforts to agree on the proposal of assessment of the bill did not bear fruits. That the respondent proceeded to obtain the warrants irregularly and illegally and instructed Bama Auctioneers to proceed with the sale of his vehicle. The appellant further averred that the taxing officer was not qualified and that he was not given a chance to take part in the assessment of the costs whereas he was willing to pay decretal sum and costs. 3.On his part the Respondents submitted that judgment was entered in his favour and that a 30 stay of execution granted lapsed on 7th of October 2023 without any payments from the appellants. He submitted that it is upon the expiry that his advocate instructed auctioneers to commence with the execution proceedings through warrants of attachment and sale obtained in 11th of October 2023. He maintained that the procedure used to obtain the warrants was legal and regular and if there was any mistake in court then the same should be blamed on the registry staff. He averred that the application was a delay tactic and an afterthought meant to delay the process. He veered that he is entitled to the fruits of the judgement. 4.The trial magistrate in his ruling acknowledged that the appellant had not been given an opportunity to reply to the bill of costs but also observed that this does not extinguish the respondent’s right on claiming the decretal sum. As such the Learned Magistrate ordered the applicant to pay the decretal sum of Kshs. 1,091,000/= within 7 days, pay the auctioneer’s costs as their action is attributed to the failure of the appellant to pay the decretal sum. The Magistrate further ordered the respondent to serve the Appellant with the Bill of Costs. Background of the Appeal 5.Aggrieved by the subordinate court, the appellant has filed this instant appeal seeking that the ruling be set aside and/or quashed and that this court:a.Set aside the Warrants of Attachment of Movable Property in execution of decree for money and Warrant of Sale of Property in Execution of Decree for money both issued on the 11th day of October, 2023 since the same were obtained unprocedurally, irregularly and illegally.b.The Honourable Court be pleased to expunge the Respondent’s undated Application for Execution from the trial court record since it was not duly filed.c.The Honourable Court be pleased to expunge the Respondent’s Bill of Costs dated 10th day of September, 2023 from the trial court record since it was not duly filed.d.Costs of the Appeal be borne by the Respondent.e.Any such and/or further Orders that the Honourable Court shall deem just and expedient in the circumstances 6.The prayers sought are based on several grounds mainly; that the Learned trial magistrate erred in law and fact by delivering a contradictory ruling wherein the court acknowledged in its ruling that a wrong procedure was deployed by the Auctioneer in endeavors of realizing the respondent’s claims o the decretal sums plus costs but in a strange turn of events in the final orders slaps the appellant, the victim of the wrong procedure, with an order to pay the perpetrator of the wrong procedure auctioneers costs. 7.The court directed that the appeal to be canvassed by way of written submissions. The appellant in his submissions dated 2nd of May 2025 averred that the trial court ignored the evidence and prayers sought in the application and ordered the appellant to pay the auctioneers fees despite a wrong procedure having been deployed in obtaining the warrants. 8.Particularly, the appellant submitted that the application for execution was never filed, there was no decree dated 7th of September 2023 that was purported to be executed, the bill of costs was never duly filed and assessment was done by an unqualified person. The appellant further submitted that an auctioneer who was brought in irregularly and illegally cannot be paid. 9.The respondents did not file written submissions in opposition of this appeal despite having the knowledge that the appeal will be canvassed through written submissions and being given ample time to file their submissions. This court will therefore proceed with the record and evidence that has been adduced. Analysis 10.The role of this court as an appellate court is to independently evaluate, reconsider the evidence adduced before the trial court and come to its own determination while bearing in mind that it neither saw nor heard the witnesses testify. (See Selle & Another V. Associated Motor Boat Company Ltd (1968) EA 123, 126 paras H-I). 11.Similarly, in Peter v Sunday Post Ltd (1958) EA 424, The court stated that;“Whilst an appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand, this jurisdiction is exercised with caution.” 12.I have independently re-valuated and analyzed the appeal and trial record in its entirety. As a starting point, this court is alive to the fact that a successful litigant is entitled to enjoy the fruits of judgement and technical objections should not be used to aid the evasion of lawful execution. On the other hand, execution is not an informal process but a judicial process that must be in compliance with the law. 13.From the record and having deciphered the context, the main issue under contention is whether the process of obtaining the warrants of attachment of moveable property and warrants of sale of property in execution of decree for money issued on the 11th of October 2023 was procedural and whether the attendant auctioneer’s cost are properly anchored. 14.The appellant has faulted the process of obtaining the warrants of attachment of moveable property in execution of decree for money and warrants of sale of property in execution of decree for money issued on the 11th of October 2023. The main ground on this objection is that there was no application for execution that was ever duly filed and paid for as evident in the Judiciary’s Case Tracking System (CTS). Hence, the appellant contends that there was no application to begin with in which to anchor the execution process. 15.This court is of the opinion that mere filing is not equivalent to filing. A document is regarded as having been duly filed when it is presented to the registry, requisite fees are paid, it is assigned a reference in the CTS filing system and forms part of the court record. 16.A perusal of the record in this case shows no proof of filing the application aside from the stamping by the civil registry dated 11th of October. The respondents in their replying affidavit and written submissions at the subordinate courts did not sufficiently address this issue and apportioned liability to the registry attendants. 17.Following this analysis therefore, this courts finds that there is no proof that a valid execution application exists. There is also no proof that the requisite fees were paid. The warrants in question therefore lack a lawful foundation. 18.Execution proceedings are not self-executing and are governed by Order 22 Rules 6 and 7 of the Civil Procedure Rules. Execution is commenced through an application by the decree holder which invokes the court’s jurisdiction and upon which warrants ultimately issue. In this particular case, there is no sufficient proof that this application was undertaken in accordance with the law. 19.The appellant further argues that this application for execution purports to be in execution of an imaginary and non-existent decree dated 7th of September 2023 when in actual sense the decree was issued on 11th of October (albeit unprocedurally). 20.This court notes that a decree is the foundation of execution. Under Section 38 of the Civil procedure Act and Order 22 of the Civil Procedure Rules, execution can only issue upon a valid decree. This therefore flows that the application for execution must correctly identify the decree sought to be enforced. Order 22 rule 7 requires the decree holder to state the date of the decree. This requirement is not ornamental but it enables the court and the judgement debtor to ascertain the decree being executed, whether execution is within the requisite timelines, applicable interests among other reasons. 21.However, we are alive to clerical issues and the question is whether in this particular instance it is curable. After a perusal of the application, this court is of the opinion that aside from the date the rest of the details are constant and are identifiable. This error in my opinion can be cured under Sections 1A, 1B and 3A of the Civil Procedure Act and Article 159(2) 9d) of the Constitution. 22.The appellant contends that the respondent’s bill of costs was never duly filed before the court hence there is no competent bill on record to be assessed. The respondent on the other hand maintains that the bill of costs was properly lodged and the appellant was duly served. The appellant further submits that he was not afforded an opportunity to participate in the taxation/assessment process and that it was conducted by an unauthorized person. 23.In this present case, the legality of the Certificate of Costs depends not only upon the existence but the regularity of the process that produced it. 24.The appellant further faults the Learned Magistrate for directing that the auctioneer’s charges be borne by the appellant notwithstanding the challenge mounted against the execution process. 25.It is not disputed that auctioneers’ charges arise from and are incidental to the process of execution. The question that arises is whether the appellant should bear costs in a process that was irregular. This court is of the view that once the foundation upon which the attachment has been questioned then the attendant charges become equally unsustainable. Determination 26.This court has considered the rival positions in this appeal. Whereas the appellant has adduced substantially proof to advance his case, the respondent has not satisfactorily rebutted the allegations. When the evidence adduced is analyzed in totality, particularly the procedural deficiencies then the regularity of the execution process cannot be simply overlooked as a technicality. 27.This court notes that execution is the legal process through which a successful litigant realizes the fruits of a judgment. While the law recognizes the rights of decree holders to enjoy the fruits of a judgment, that right must be exercised in strict compliance with the frameworks established under the Civil Procedure Act and Rules. 28.I am guided by the case of Macfoy v. United Africa Co. Ltd (1961) 3 All ER 1169 where Lord Denning states that;“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad…You cannot put something on nothing and expect it to stay there. It will collapse.” 29.The court issuing the warrants is therefore required to satisfy that the execution sought is founded upon a valid application and identifiable decree. 30.The principle governing taxation rallies around notice, participation and fairness. A party against whom costs are sought is ordinarily entitled to notice of the taxation or assessment proceedings. 31.Accordingly, I find that the trial magistrate erred in failing to consider the circumstances around the legality and validity of the execution process herein that resulted to the attendant warrants. 32.This appeal therefore succeeds to the extent that the impugned warrants of attachment of moveable property in the execution of decree for money and warrants of sale of property in execution of decree for money issued on 11th of October 2023 cannot stand. This does not bar the respondent from taking out fresh execution in accordance with the law.DispositionConsequently, I make the following orders;a.The appeal is allowed.b.The ruling of the Learned Trial Magistrate dated and delivered on the 22nd November 2023 is hereby set aside.c.The warrants of attachment of moveable property in the execution of decree for money and warrants of sale of property in execution of decree for money issued on 11th of October 2023 are hereby set asided.The respondent’s application for execution as well as the bill of costs dated 10th of September 2023 are hereby expungede.The respondent/decree holder is at liberty to apply for fresh execution in strict compliance with the Civil Procedure Act and Rules, 2010.f.For avoidance of doubt, this judgment does not set aside the decree or extinguish the respondent’s right to execute for any sum lawfully due.g.Each party shall bear their own costs of both this appeal as well as the application at the trial court. It is so ordered. DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 18TH DAY OF JUNE 2026A.M. OKUTOYIJUDGEIn the presence of:Mr. Ongori for the AppellantN/A-RespondentRuth Mokeira-Court Assistant