https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11226

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MALINDI** **CIVIL CASE NO. 5 OF 2020** **MICHELLE BIBI FONDO ……………………...............................PLAINTIFF/RESPONDENT** **VERSUS** **RADIO AFRICA GROUP LIMITED……………………….…1ST DEFENDANT/APPLICANT** **THE NAIROBI STAR PUBLICATION LIMITED.………….2ND** **DEFENDANT/APPLICANT** **MAUREEN MUDI……………………………………………....3RD DEFENDANT/APPLICANT** **RULING** 1. By an Application dated 1.10.25, the Defendants seek that the Court lifts and sets aside the warrants of attachment and sale dated 23.9.25 and proclamation of attachment/repossession/distraint of moveable property dated 30.9.35. 2. The grounds upon which the Application is premised are set out in the Application and the supporting affidavit of Mercy Gichoya, counsel for the Defendants, sworn on even date. It was averred that by a judgment dated 8.7.24, this Court awarded the sum of Kshs. 6,000,000/= plus costs and interest to the Plaintiff against the Defendants. On 12.10.24, the party and party bill of costs was taxed at Kshs. 375,898/=. Parties then entered into a consent dated 30.1.25 for a negotiated sum of Kshs. 9,375,898/= as the full and final settlement, which the Defendants have fully settled. In spite of this and in breach of the said consent, the Plaintiff by warrants of attachment and sale dated 23.9.25 (warrants) and proclamation of attachment/repossession/distraint of moveable property dated 30.9.35 (proclamation) purports to levy execution against the defendants for the sum of Kshs. 2,784,128/=. The Defendant’s property was to be removed on 7.10.25 for sale by public auction. The Defendants urge that the Application be allowed as prayed. 3. By her affidavit sworn on 3.10.25, the Plaintiff opposed the Application. Her contention is that the amount awarded remained unpaid and she commenced execution by serving warrants of attachment and sale dated 6.8.25 and later the warrants and proclamation. On the consent, the Plaintiff stated that the same was filed in Court on 2.10.25 and has never been adopted as an order of the court; that the Defendants delayed filing the said consent to avoid being bound by the same, a demonstration of bad faith; that having breached the terms of the draft consent by failing to pay the sums therein the Defendants cannot rely on the same; that it is only after issuance of the warrants of 6.8.25 that the Defendants issued 3 cheques dated 31.8.25 totaling Kshs. 2,500,000/=; that out of a total decretal interest of Kshs. 4,830,000/=, only Kshs. 3,000,000/= has been paid, leaving a substantial balance; that the consent was at variance with instructions given to her former advocates and she cannot therefore endorse the consent for adoption. She urged that the execution was lawful and based on a decree of the Court and prayed that the Application be dismissed with costs. 4. Mercy Gichoya filed a further affidavit sworn on 15.10.25 in which she averred that the 1st and 2nd Defendants have been in serious financial constraints; that following the judgment, she on instructions from the Defendants negotiated a reduced decretal sum payable in monthly instalments which was captured in the consent of 30.1.25 signed by both parties; that the Defendants commenced payments and when they were unable to pay, the Plaintiff relied on the said consent to demand payment; that at no time did the Plaintiff demand payment of the whole decretal sum; that on 31.8.25, the Defendants fully settled the sum of Kshs. 9,375,898/= as well as auctioneers fees of Kshs. 600,000/= for execution proceedings of 6.8.25; that the parties acted in good faith and in full reliance of the consent; that the filing of the consent was necessitated by the unlawful execution *vide* the warrants and proclamation. The Defendants urged that unless the orders sought are granted, they stand to suffer great prejudice. 5. I have given due consideration to the Application, the rival affidavits and submissions. The issue for determination is whether the warrants and proclamation should be lifted and set aside. 6. The undisputed facts are that a judgment in favour of the Plaintiff was delivered on 8.7.24 in which she was awarded Kshs.6,000,000/= plus costs and interest. Thereafter parties negotiated and it was agreed that the Defendants would pay to the Plaintiff an all-inclusive amount of Kshs. 9,375,898/= in instalments. This agreement was reduced in a written consent dated 30.1.25 and was signed by the parties’ respective counsel. 7. The Defendants’ case is that they have fully paid the amount agreed in the consent. The Plaintiff however disputes this and contends that the consent was never adopted as an order of the court and cannot therefore displace the judgment and decree. Further that the consent is at variance with her instructions to her erstwhile counsel. 8. I have considered that there is a consent duly signed by the parties’ respective counsel. The consent was entered into, post judgment. That consent was not presented to this court for adoption. It is therefore not an order of the Court. As such, this Court cannot enforce it. The Court will only enforce the judgment and decree herein. 9. The question for determination therefore, is whether the warrants and proclamation were issued in accordance with the law. 10. Order 22 Rule 18 of the Civil Procedure Rules requires that where execution is sought more than a year after issuance of a decree, a notice to show cause shall be issue to the person against whom execution is applied for as follows: 11. ***Where an application for execution is made—*** 12. ***more than one year after the date of the decree;*** 13. ***against the legal representative of a party to the decree; or*** 14. ***for attachment of salary or allowance of any person under rule 43,*** ***the court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him:*** ***Provided that no such notice shall be necessary in consequence of more than one year having elapsed between the date of the decree and the application for execution if the application is made within one year from the date of the last order against the party against whom the execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment-debtor, if upon a previous application for execution against the same person the court has ordered execution to issue against him:*** ***Provided further that no such notice shall be necessary on any application for the attachment of salary or allowance which is caused solely by reason of the judgment-debtor having changed his employment since a previous order for attachment.*** 1. ***…*** 2. The judgment and decree are dated 8.7.24. As such, a notice to show cause ought to have been issued against the Defendants before taking out the warrants dated 23.9.25 and proclamation dated 30.9.25. In this regard, I associate with Njuguna, J. (as she then was) who in **Securex Agencies Kenya Limited v Paul Otieno Wambedha [2019] KEHC 1577 (KLR)** stated: ***14. Be that as it may, the record also shows that the decree was issued on 25th April, 2018 which then means that the warrants of attachment and sale dated 10th May, 2019 were issued more than one (1) year thereafter. Moreover, the respondent did not indicate that he had ever filed an application in execution of the decree previously. From my reading and understanding of Rule 18(1) of Order 22 (*supra*), the respondent was required to apply to the court for issuance of a notice to show cause against the appellant before taking out the warrants of attachment and sale but did not, which is to say that the warrants issued were irregularly issued and hence unlawful.*** 1. The warrants and proclamation herein were issued more than a year after the judgment and decree. There is no demonstration that the Plaintiff applied for execution and a notice to show cause issued against the Defendants prior to taking out the warrants. In the premises, the warrants and proclamation were obtained irregularly and in violation of the express provisions of Order 22 Rule 18 of the Civil Procedure Rules. As such, the same cannot stand. 2. In the end, I allow the Application dated 1.10.25 with costs to the Defendants. **DATED SIGNED and DELIVERED in MALINDI this 24th day of July 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **M. THANDE** **JUDGE**