https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9680

Kaluma v Standard Group Limited & 3 others (Civil Case 235 of 2018) [2026] KEHC 9680 (KLR) (Civ) (24 June 2026) (Ruling) Neutral citation: [2026] KEHC 9680 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case 235 of 2018 SN Mutuku, J June 24, 2026 Between Hon George Peter Kaluma Plaintiff and The Standard Group Limited 1st Defendant Charles Otieno 2nd Defendant Joseph Odindo 3rd Defendant Caroline Kimutai 4th Defendant Ruling The Application 1.The subject of this ruling is the Notice of Motion dated 12th May 2026 (the Motion) brought under Sections 1A, 1B, 3A & 94 of the Civil Procedure Act (CPA); Order 22, Rules 7(2) and 22, and Order 51, Rule 1 of the Civil Procedure Rules (CPR). The Motion was filed by The Standard Group Limited (the Judgment Debtor) seeking the following orders:i.That pending the hearing and determination of this Application inter partes, there be a stay of execution of the judgment/decree issued on 13th November 2025 and all consequential orders including warrants of attachment and sale of movable property.ii.That pending the hearing and determination of the Applicant’s Application dated 8th April 2026 in HCCMISC/E374/2026 seeking break-in orders and police assistance, and pending taxation of the Bill of Costs, there be a stay of execution of the decree herein.iii.That all execution proceedings commenced by the Plaintiff/Decree Holder, including the warrants of attachment issued on 11th February 2026, be set aside and/or declared null and void for being premature and irregular.iv.That costs of this Application be provided for. 2.The Motion is supported by the grounds set out on its face and in the Supporting Affidavit sworn by the Judgment Debtor’s Legal Officer/Company Secretary, Esperance Ogola, on 12th May 2026 in which it is deposed that judgment was delivered in the present suit on 13th November 2025 in favour of the Decree Holder, resulting in the issuance of a decree on 22nd December 2025; that while costs of the suit were similarly awarded to the Decree Holder, no Bill of Costs has either been filed or served and therefore, no taxation proceedings have taken place on the assessment of costs. It is deposed that under Section 94 of the CPA, no execution proceedings on payment of costs can be commenced until the issue of costs has undergone taxation; that nevertheless, the Decree Holder commenced the execution process against the Judgment Debtor by taking out warrants of attachment and sale of movable property on 11th February 2026; that further, the Decree Holder recently filed an application in High Court Misc. Civil Application No. E374 of 2026 (the Miscellaneous matter) seeking break-in orders and police assistance, which application was scheduled to come up for hearing on 13th May 2026; that the execution proceedings herein are premature and irregular, since they are in blatant disregard and contravention of Section 94 CPA and that unless the court intervenes and grants the orders as prayed, the Judgment Debtor is at risk of suffering substantial prejudice and loss of its business assets and equipment. The Grounds of Opposition 3.The Decree Holder has filled Grounds of Opposition dated 26th May 2026, to oppose the Motion, in which he has set out the following grounds:a.That Section 94 of the Civil Procedure Act is not couched in mandatory terms; the discretionary powers of the court ought to favour the Decree Holder who has been in court for 8 years.b.The Decretal sum herein of Kshs 11 Million has already accumulated interest in excess of Kshs 800,000/ since 13th November, 2025; as the Judgement Debtors have hitherto refused to settle the Decretal amount in any sum or at all.c.The application is scandalous, vexatious and an abuse of court process by a litigant who is in court with dirty hands to defeat the Decree Holder’s right to immediate enjoyment of the fruits of his judgement.d.In the circumstances hereof, the court ought to allow for the execution to proceed pending taxation of any bill of costs if at all, to enable the Decree Holder obtain the Decretal sum on the one hand while minimizing the huge interests accruing by the day.e.The method of execution sought, by way of breaking in orders in order to execute the Warrants of Attachment is only necessitated by the Judgement Debtor’s blatant refusal to settle the Decretal sums herein.f.By these grounds of opposition, the 1st Respondent shows cause why execution of the Decree herein cannot be effected by the issuance of Warrants of Arrest in the Notice to Show Cause herein. Oral Submissions 4.Pursuant to the directions of the court, the Motion was canvassed by way of oral submissions on 3rd June 2026. 5.Mr. Wepoh, counsel for the Judgment Debtor, relied on the grounds in support of the application and argued that the warrants issued in this suit offend the provisions of Order 22 of the CPR as they do not indicate the costs awarded herein and that the execution process commenced in this matter offends Section 94 of the CPA which is couched in mandatory terms. He cited the case of Board of Trustees, National Water Conservation & Pipeline Corporation (NWCPAC) Staff Superannuation Scheme v Mombasa Water Supply & Sanitation Co. Ltd [2017] KEHC 4807 (KLR) to support his submissions. 6.It is counsel’s contention that special circumstances ought to be shown in justifying commencement of the execution process before the costs awarded are assessed; that in this case, no such special circumstances have been shown by the Decree Holder and therefore, the execution process commenced in this matter is premature and therefore a nullity. 7.Ms. Samba, counsel for the Decree Holder, submitted that this is a fairly old matter which concluded on 13th November 2025 upon delivery of judgment against the Judgment Debtor; that nevertheless, the Judgment Debtor has to date not made any payments in settling the decree; that the Decree Holder is entitled to enjoy the fruits of his judgment and that no prejudice has been demonstrated by the Judgment Debtor, if execution is permitted to proceed against it. 8.Counsel submitted, further, that Section 94 of the CPA does not make it mandatory for a decree holder to pursue taxation proceedings before commencing execution contrary to the arguments of the Judgment Debtor and that execution may proceed prior to taxation on the costs. 9.She urged the court to decline granting the orders sought and submitted that should the court be inclined to agree with the position taken by the Judgment Debtor herein, then it consider the fact that the interest on the judgment sum continues to accrue and yet no payments have so far been made by the Judgment Debtor. 10.In a rejoinder, Mr. Wepoh reiterated that the procedure for execution has not been properly followed and that no law or authority has been referenced, countering his submissions. Determination 11.I have considered the Motion, the grounds in support, the Grounds of Opposition and the rival oral submission by the respective counsel. 12.I have noted that in seeking to have the execution process declared a nullity, Judgment Debtor has relied on Section 94 of the CPA, which provides that:“Where the High Court considers it necessary that a decree passed in the exercise of its original civil jurisdiction should be executed before the amount of the costs incurred in the suit can be ascertained by taxation, the court may order that the decree shall be executed forthwith, except as to so much thereof as relates to the costs; and as to so much thereof as relates to the costs that the decree may be executed as soon as the amount of the costs shall be ascertained by taxation.” 13.From my reading and understanding of the above provision, there are certain instances where the High Court may exercise its discretionary power by ordering that a decree be executed before the costs awarded in the judgment have been ascertained by way of taxation proceedings. However, the execution of costs must await the taxation of the same to ascertain the amount of costs available for taxation. 14.Further, it is my understanding of the wording of Section 94 CPA that for a party to proceed with execution of a decree before taxation is done, such a party must seek leave of the court. This is the position taken by the Court of Appeal in Bamburi Portland Cement Company Limited v Imranali Chandbhai Abdulhussein [1996] KECA 202 (KLR) when it stated that:“Section 94 of the Civil Procedure Act requires that for execution of a decree before taxation leave must be obtained from the High Court, such leave may be sought informally at the time judgment is delivered but if that is not done then it must be made by way of a notice of motion. The motion must be served on the other party and heard inter parties.” 15.In Lakeland Motors Ltd v Sembi (1998) LLR 682 the Court of Appeal had this to say in respect of Section 94 CPA:“The exercise of judicial discretion by the superior court under Section 94 of the Act necessarily required that parties to a decree passed by that court in the exercise of its original civil jurisdiction should be availed an opportunity to be heard before making an order for execution of that decree before taxation.This, we think, is the spirit of the observation of Shah J.A, with which we agree in Bamburi Portland Cement Co. Ltd Vs Abdulhussein (1995) LLR 2519 (CAK) in regard to the application of Section 94 of the Act.” 16.Further pronouncements in respect of Section 94 CPA were made in Kartar Singh Dhupar & Co. Ltd v Lianard Holdings Limited [2017] KEHC 2233 (KLR) as follows:“The mischief sought to be addressed by section 94 of the Civil Procedure Act, is to protect a judgment debtor from suffering multiple executions, one in respect of the principal sum and the other for the costs after ascertainment in respect of the same suit, as observed by Justice Odunga in the case of Erad Suppliers & General Contractors –Vs- NCPB observed that:“In my view, the necessity for leave to be obtained where a party intends to execute before taxation is to obviate situations where a judgment debtor is likely to be confronted with two sets of execution proceedings. In respect of the same decree i.e. for the principal sum and for costs. This is a recognition of the fact that in a civil action the main aim is compensation and the process should not be turned into a punitive voyage. Therefore, where there are no costs to be paid or where a party entitled to costs has abandoned or waived the same, in my view, Section 94 of the Civil Procedure Act does not apply. If the Respondent was not aware that the claimant was not keen on the said costs now it is aware and that would render that ground unnecessary.” 17.In the instant matter, it is not disputed that judgment was entered in favour of the Decree Holder and against the Judgment Debtor, by way of an award of Kshs. 11,000,000/- constituting general and exemplary damages, plus costs of the suit and interest on the awarded sum. It is also not disputed that the Decree Holder recently commenced execution by obtaining warrants of attachment and sale of movable property, dated 11.02.2026. It is equally not in dispute that the costs awarded in the aforesaid judgment are yet to be assessed by way of taxation. 18.The record of the court does not show that the Decree Holder sought and obtained leave of this court to proceed with execution before taxation of the costs as provided under Section 94 CPA. Consequently, I am persuaded that the execution process to recover the decretal sum was commenced prematurely and irregularly, and therefore ought to be set aside. 19.In respect to prayer 3 in the instant application seeking a stay of execution pending hearing and determination of the application dated 8.04.2026 filed by the Decree Holder in HCCCMISC E374 of 2026, I have noted that the said application seeks police assistance in a break-in order in execution of the decree. That application is listed for mention on 24. 6.2026. The record in that case shows that the said application was, on 3.6.2026, held in abeyance pending the outcome of this instant application. For that reason, I decline to issue prayer 3 of the current application under determination. 20.In the end, after due consideration of the Notice of Motion dated 12.05.2026 and the grounds in support and against it, as well as arguments of the parties, the Notice of Motion dated 12.5.2026 is hereby partially allowed in the following manner:a.That the execution proceedings commenced by the Plaintiff/Decree Holder, including obtaining the warrants of attachment issued on 11.02.2026 be and are hereby set aside on grounds of being premature and therefore irregular.b.That prayer 3 of the Notice of Motion dated 12.05.2026 is hereby declined for the reasons that the application in HCCCMISCE374 of 2026 was held in abeyance pending the determination of this application.c.That parties shall each bear their own costs of this Motion. 21.Orders shall issue accordingly. DATED, SIGNED AND DELIVERED THIS 24TH DAY OF JUNE 2026.S. N. MUTUKUJUDGE