https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6978

Wang'ondu (Suing as the Administratrix of the Estate of John Charles Wang’ondu (Deceased)) v Amadi & another (Civil Case 580 of 2007) [2026] KEHC 6978 (KLR) (Civ) (21 May 2026) (Ruling) Neutral citation: [2026] KEHC 6978 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case 580 of 2007 JN Mulwa, J May 21, 2026 Between Felicina Muthoni Wang'ondu (Suing as the Administratrix of the Estate of John Charles Wang’ondu (Deceased)) Applicant and Moses Amadi 1st Defendant John Masinde Makomere 2nd Defendant Ruling 1.There are two applications before the court for determination. The first one is dated 24/07/2025 brought by the Applicant Felicina Muthoni Wangondu (decree holder) seeking authority from court to execute the decree of the court issued on 23/06/2025 and certificate of costs dated 12/06/2025 together with accrued interest, by way of attachment and sale by public auction of the 1st Defendants (judgment Debtor) and reference No. 12715/6266 (original 12715/14 located at Athi River township. he decretal sum as at May 2025 is stated at Kshs. 3,111,172 and interest continues to accrue until payment in full. 2.The second application is dated 21/10/2025 brought by the 1st Defendant – Judgment debtor Moses Amadi. It is premised on Order 22 Rule 22 CPR, he seeks leave to appoint new advocates after judgment upon grounds that his earlier advocate had passed on after judgment and before execution of the decree by the plaintiff. He also seeks stay orders of execution, as he was ready and willing to settle the decree sum via negations out of court.The motion is premised upon Order 22 Rule 22 of the Civil Procedure Rules and Article 50 of the Kenya Constitution. 3.On 10/11/2025 the motion dated 21/10/2025 was allowed by consent of the parties thus allowing the firm of Amadi & Amadi Advocates to come on record for the 1st Defendant. The 2nd Defendant was also struck out from the proceedings. 4.Pending for determination is therefore the Plaintiffs motion dated 24/07/2025 upon which an order of status quo was granted awaiting ruling on the motion. Motion Dated 24/07/23025 5.Premised upon Order 22 Rule 9 (a) (b) and Rule (2) (3) CPR and Section 38 (b), 44 (1) of the Civil Procedure Act supporting affidavit of the Applicant, it is posited that despite judgment entered against the first defendant on 8/03/2024 in the sum of Kshs. 2,783,300/= exhibit”FMW-1” and a certificate of costs dated 12/06 for Kshs. 327,872/- exhibit “FMW-2”and decree dated 23/06/2025 Exhibit “FMW-1”, the judgment debtor has failed to settle the decretal sum. 6.The Applicant further posits that despite the Respondent expressing willingness to settle the same and having been granted sufficient time, he has failed to do so upon which the Applicant finding no asset from which sale the decretal sum may be recovered, has opted to seek court’s leave and authority to attach and sale by public auction the only asset it has found, as supported by an official search certificate dated 23/05/2025 , annexed and marked “FMW”. 7.The Respondent (JD) opposes the motion by a Replying Affidavit he swore on 21/10/2025 stating that he is ready and willing to negotiate an out of court settlement of the decretal sum; that he opposes attachment and sale of his property at AthiRiver for reason that it is his sole residence with his family and matrimonial home.He continues to posit that upon demise of his previous Advocate, the Applicant continued to serve court process upon his law firm, and therefore the execution process is irregular unlawful and contrary to rules of natural justice and thus seeks to be allowed to pay by reasonable instalments as the court may direct. 8.Parties were directed to file submissions. Only the Applicant complied despite the Respondent having been granted extension of 30 days from 19/03/2026 to file submissions. Analysis and Determination 9.I have considered the Applicants/Decree holders submissions dated 18/03/2026 and dully served upon the Respondent.The only issue that concerns for determination is whether the Applicant/Decree holder is deserving of the orders sought. 10.It is not disputed that there is in force a judgment and decree in favour of the Applicant as against the 1st Defendant/Respondent. It is also not disputed that the Respondent has had sufficient time to negotiate a settlement out of court since its delivery on 8/03/2024.The Respondent further and expressly confirms being the sole proprietor of the property sought to be attached and be sold by public auction to recover the decretal sum. 11.I have confirmed from the affidavit material filed by the Respondent that his previous advocate died on 28/01/2024 after the hearing of the suit was concluded and only pending delivery of judgment that was eventually delivered on 8/03/2024 and additionally that the Respondent confirmed knowledge of the said decree and having made attempts to settle the decretal sum out of court, but which negotiations bore no results hence the application before the court. 12.Execution of a lawful decree is regular and lawful unless the judgment debtor has obtained a lawful order of court by either review, setting aside or appeal against the judgment. There is no evidence that the Respondent took any of the above options. Prima facie therefore, the Applicant is entitled to execute to recover fruits of its judgment. 13.Section 38 of the Civil Procedure Act sets out mechanisms through which a decree holder may enforce a judgment. It provides:38(a)“… subject to such conditions and limitations as may be prescribed, the court may on the application of the decree holder, order executions of the decree..(b)by attachment and sale or by sale without attachment of any property… 14.Order 22 Rule 48 provides the several modes of execution among them attachment and a sale of property of the judgment debtor. It provides:48(i): where the property to be attached is immovable, the attachment shall be by an order of prohibiting the judgment debtor from transferring or charging the property in any way, and all persons from taking any benefit from such purported transfer or charge, and the attachment shall be complete and effective upon registration of a cop of the prohibitory order or inhibition against the title to the property. 15.Order 22 Rule 9 CPR provides certain particulars including description of such property as to ascertain the same by property numbers, location and interest of the same by the judgment debtor.In this respect, the Applicant has evinced an official search certificate showing that the property intended to be attached belongs to the Respondent solely; and sufficient cause shown why the decree holder seeks authority to attach the same shown as held in the case of Mbatha Muyuma v. George Mukora and Hon. Attorney General (2025) KEELC 680 (KLR). 16.Section 44 of Cap 12 provides all property belonging to a judgment debtor is liable to attachment and sale in execution of a decree, with exceptions stated at 44(i) (ii) (iii). The Respondents property does not fall in the exemptions; and it is therefore liable for attachment and sale.In Kinyanjui V. Peter Ketter & 5 Others [2013 KECA 378 (KLR) the court of appeal held that so long as there exists no stay of execution proceedings orders or any pending appeal, an application for attachment and sale by auction by an application in execution of a decree ought to be allowed.Whereas the Respondent challenged attachment and sale of the property cited by stating that it is his family residence and his matrimonial home, he has failed to offer any evidence of the said averments. 17.It is not sufficient to state so only. The Matrimonial Property Act Cap 152 states, at Sections 6 to 10, meaning of a matrimonial home, ownership of such property and property rights in the alleged matrimonial property.Having failed to comply with the provisions stated thereto, the court is under no obligation to hold that the property is a matrimonial property and besides, he has failed to state his share of the same, and being the sole proprietor as seen from the certificate of official search provided, the Respondent shall bear full liability to settle the decretal sum. 18.In terms of the principles laid down in the case of Regional Container Freight Station Limited & 2 Others vs. Zum Zum Investments Limited(2023) eKLR, the court is satisfied that the Applicant has met the threshold as sated at Order 2In conclusion, the court is persuaded to allow the Applicant’s application dated 24/07/2025 interms of prayers 1, 2, 3 and 4.The Respondent had urged to be allowed to pay the decretal sum by reasonable instalments. The court shall allow intentioned and purposeful negotiations between the Applicant and the Respondent (1st Defendant) to engage within 30 days of this ruling for a possible settlement. 19.If no agreement or consensus is reached within the stated period, the Applicant shall be at liberty to proceed with the execution proceedings to conclusion. Orders accordingly. DELIVERED DATED AND SIGNED AT NAIROBI THIS 21ST DAY OF MAY 2026.……………………….JANET MULWA.JUDGE