https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/214

Kassam v Patel t/a Jayi Yogi Household & 3 others (Civil Miscellaneous E018 of 2026) [2026] KEMC 214 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEMC 214 (KLR) Republic of Kenya In the Bungoma Law Courts Civil Miscellaneous E018 of 2026 RN Maloba, SPM July 2, 2026 Between Raihaan Amirali Kassam Plaintiff and Jitentra Patel t/aJayi Yogi Household & 2 Others Respondent and Samson Okall t/a Dasemy Auctioneers Interested Party Ruling The gist of the application and response 1.The Applicant in the application dated 18/3/2026 is a tenant to the Respondent in the same application. 2.He filed the application response to the previous one filed by the Auctioneers as the agent of the Respondent dated 17/2/2026. 3.That application was filed ex-parte under Rule 9(A) (B) and (C) of the Auctioneers Rules 1997. It sought orders of security provision by the Officer Commanding Station (OCS) Bungoma Police Station during eviction of the Applicant from the suit premises. This was based on letter of instruction received from the Respondent in his capacity as the Applicant’s Landlord. 4.In this application orders sought were:1.Spent.2.Spent.3.That an interim order of injunction be issued restraining the Respondents, their agents and/or employees from interfering with the Applicant’s running ad management of their offices and institutions pending the hearing and determination of this application inter partes.4.That the OCS Bungoma Police Station to ensure compliance with these orders. 5.The Applicant argued in support of this application that no formal notice was issued to them prior to the eviction. That only the proclamation notice was served. That as such, the intended eviction is illegal and the same ought to be lifted. 6.This application was opposed. The auctioneer filed his replying affidavit dated (sworn) on 24/3/2026. He averred that he was instructed pursuant to Orders arising from Kakamega Business Premises Rent Tribunal Case No. E019/2022 which orders were adopted by this court in Bungoma CMC Misc. Application No. E396/2022 as a decree of the court. This adoption was pursuant to Section 14 (1) of CAP 301 which allows for adoption and enforcement by court of Tribunal’s orders as its decrees. The same provides that; 7.That upon receipt of the court order/decrees, he sought police assistance in this matter and obtained the same. He then served those orders upon the OCS on 28/2/2026 for him to maintain law and order during the eviction. 8.That subsequent to that, he proceeded and executed the eviction lawfully in absence of any stay orders. But later, the Respondent Landlord was served with another court order issued on 18/3/2026 ordering that the status quo be maintained. He averred that the legal position on the same was that the existing situation was to be preserved without reversing any completed acts. 9.In view of that, and other matters he raised in paragraph 9, he argued further that the present application is totally defective. 10.The application came up for hearing on 8/6/2026. Initially, the Respondent’s counsel Mr. Kamau attended ex-parte but later, both he and the Applicant appeared. They proceeded to argue the application and asked for a ruling date. Orders earlier obtained by the respondent in absence of the Applicant dismissing the application for non-attendance were earlier vacated by consent. Issues for determinationThese are:1.Whether the Applicant has shown cause to warrant grant of the orders sought.2.Whether there are any prayers left for determination and/or grant by the court.3.Whether there is merit in this application. Determination 11.The court has considered this application on its merit within the context of Rule 9 of the Auctioneers Rules and previous matters from which this matter arises and in particular, Bungoma CMC Misc. Application No. E396 of 2022. It has also taken recognizance of provisions of Section 14 (1) of CAP 301 which provides for adoption of Tribunals awards as its orders or decrees for purposes of enforcement/ execution."14(1)a duly certified copy of any determination or order of tribunal may be filed in a competent subordinate court of the first class by any party to the proceedings before such tribunal or by the tribunal and on such copy being filed and notice thereof being served on the tribunal by the party filing the same, such determination or order may, subject to any right of appeal conferred by or under this Act be enforced as a decree of the court” 12.It is not doubted that this matter was filed to facilitate execution of the decree/orders of the court in Misc. Application No. E3396/2022 in which the court adopted the award of Kakamega Business Premises Rent Tribunal Case No. E019/2022. The Auctioneer needed to be facilitated with security during enforcement of the same and he did obtain relevant orders to that effect on 19/2/2026. 13.He moved the court for the same under Rule 9 of the Auctioneers Rules 1997. Under that rule, applications for security may be made ex-parte. The same provides that;9.Police assistance(1)Where an auctioneer has reasonable cause to believe that—(a)he may have to break the door of any premises where goods may be seized or repossessed; or(b)he may be subject to resistance or intimidation by the debtor or other person; or(c)a breach of the peace is likely as a result of seizure, repossession or attempted seizure or repossession of any property, the auctioneer shall request for police escort from the nearest police station in order to carry out his duties peacefully.(2)An application under this rule shall be by motion by way of a miscellaneous application support by an affidavit and may be heard ex parte.” 14.Thus, the same need not be served upon the tenant or judgment debtor for that matter prior to grant by the court of such orders. Furthermore, the issue here was not about stay of the orders hitherto issued in favour of the respondents pending appeal or anything of that sort. 15.In the circumstances, this application is found to be a non-starter and or misplaced. In fact, the court’s finding is that a challenge on the execution proceedings commenced by the Respondents may only have been effectively and validly mounted in the mother file, that is, Misc. Application No. E396/ 2022 if at all and not herein. 16.Secondly, the prayers as framed are already spent upon delivery of this ruling. Therefore, there is nothing substantial left to be determined further or beyond this application. 17.In the circumstances, I would find no merit in this application and proceed to dismiss it with costs to the respondents. RULING DELIVERED IN OPEN COURT THIS 2ND DAY OF JULY 2026HON. R.B. N. MALOBASPM2/7/2026In the presence of;Mr. Kamau for the RespondentsN/A for the ApplicantsHON. R.B. N. MALOBASPM2/7/2026