https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10114

Kenjap Motors Ltd v Wanjala t/a Zeki Motors Ltd (Civil Suit 74 of 2016) [2026] KEHC 10114 (KLR) (1 July 2026) (Ruling) Neutral citation: [2026] KEHC 10114 (KLR) Republic of Kenya In the High Court at Nakuru Civil Suit 74 of 2016 PN Gichohi, J July 1, 2026 Between Kenjap Motors Limited Plaintiff and Zeki Wanjala t/a Zeki Motors Limited Defendant Ruling 1.By a Notice of Motion dated 4th July, 2025 expressly brought under Rule 51 of the Civil Procedure Rules , Section 3 and 3A & 80 (h) of the Civil Procedure Act and Article 159 of the Constitution of Kenya 2010, the Applicant sought for the following Orders;-1.Spent.2.Spent.3.That this honourable court be pleased to set aside warrants issued on 24th April, 2025.4.That this honourable court be pleased to direct the plaintiff/decree holder to render a full and complete account of all monies so far received from the Defendant/ judgment debtor directly and from attachment/repossession and sale of Motor Vehicles subject of this suit during the pendency of the suit and after judgment was delivered in this matter.5.That upon compliance with prayer 4 above this court do issue further orders necessary for the ends of justice.6.That costs of this application to abide the outcome of the application and the same be borne by the plaintiff/decree holder. 2.The application is premised on the grounds on the face of the Notice of Motion and supported by the Affidavit of the Applicant sworn on the same date. The Applicant states that judgement was delivered in this matter on 14th May 2020 and consequently, the court has issued warrants of arrest in execution of the judgment against him for the sum of Kshs. 36,120,000/= . 3.He states that the judgment was in respect of the 35 motor vehicles allegedly given to the him for sale by the plaintiff/decree holder. He further sates that after the said judgment by this Court, the plaintiff decree holder has attached the/repossessed motor vehicles Reg. Nos.KBZ865H, KBV668D, KBN 333Y, KBX178R, KBZ766C, KBN099Z, KBV934J, KCA647W, KBY743N, KCB280H,KBP300V and KBZ117Y. However , the plaintiff decree holder has not factored the in/accounted for the proceeds of sale from the se motor vehicles. 4.He further states that he has paid the plaintiff/ decree holder a substantial sum of the money and therefore, the only outstanding amount to the plaintiff decree holder is Kshs. 625,000/= which the Applicant is willing to pay if given more time but he is unable to meaningfully engage the plaintiff/holder due to the warrant of arrest. 5.In response, the plaintiff filed a Replying Affidavit sworn on 16th July 2025 by its Chief Operations Manager, Tushar H. Varsani. Acknowledging that the Judgement was indeed entered in favour of the plaintiff against the defendant on 14th May 2020 for Kshs. 36,120,000/=, he states that the said judgment did not provide for any offset of the decretal amount by the defendant through any of the listed vehicles or otherwise , and therefore, the defendant’s claim for an account is a veiled attempt to vary or rewrite the judgment. 6.He depones that since the judgement was delivered, the defendant has not paid any money to the plaintiff towards settlement of the decretal amount. It is his position that the receipts annexed by the defendant herein ( Marked ZW-02) were all issued prior to the judgment and did not relate to any post judgment settlement. 7.Arguing that the defendant has not provided any evidence to show that the decretal sum has been settled, he states that it is in the in the interest of justice that the plaintiff proceed with execution. He therefore urges the court to dismiss the application with costs. Applicant’s Submissions 8.The Applicant framed the following issues for determination:-i.Whether execution of the decretal sum of Kshs. 36,120,000/= would unjustly enrich the Plaintiff.ii.Whether the warrant for arrest issued on 24th April 2025 should be set aside. 9.Relying on the doctrine of unjust enrichment, the Applicant submitted that the basic elements presupposed by the doctrine of unjust enrichment are that the defendant has been enriched by the receipt of a benefit; he has been so enriched at the expense of the plaintiff and that it would be unjust to allow the defendant to retain the benefit in the circumstances of the case. 10.In this case, the Applicant maintained that before and during pendency of the suit, he paid significant sums of money to the plaintiff on account of motor vehicles received from the plaintiff . He submitted that notwithstanding, the trial court still entered judgment in favour of the plaintiff without taking into account the payment the applicant had made. 11.In the circumstances, the applicant submitted that the enforcement of the full sum of Kshs. 36,120,000/= without accounting for payments and proceeds already received would offend the doctrines of equity and constructive trust. In support, reliance was placed on Order 22 Rule 2 of the Civil Procedure Act and the decision in Kioko v Musembi 120241 KEMC 32 (KLR), where the court stated: -“I now turn to briefly offer a background of the doctrine of unjust enrichment. Except where it is a gift, the doctrines of equity frown on unjust enrichment. In such cases, these doctrines impose an implied or constructive (involuntary) trust upon that person who has obtained property unwarrantedly or by wrongdoing or by voluntary conferment of benefits for total failure of consideration. In such circumstances, the doctrine of equity affords the innocent party a right known as restitution (also known as recuperation or restitutionary redress or restitutionary right) as the appropriate [remedy] chiefly guided by its sufficiency.” 12.It was therefore submitted that the applicant has computed the true outstanding balance, which is set at Kshs. 625,000/= and this amount should form the basis for any further execution. 13.On whether the warrant of arrest issued on 24th April 2025 should be set aside, the applicant submitted that with the warrant hanging over his head, he is effectively unable to comply with the decree. Acknowledging that the discretionally power to set aside such a warrant rests with the Court, he urged this Court to set aside the said warrant of arrest having regard to principles of fairness, equity and the prevention of oppression. 14.In support, he cited several cases including the case of Patel v EA Cargo Handling Services Ltd [1974] EA 75, where it was held that :-“There are no limits or restrictions on the judge’s discretion except that if he does vary the judgment, he does so on such terms as may be just.” 15.In conclusion, he urged the Court to direct the Plaintiff/Decree- Holder to render a full and true account of all sums received from the defendant/Applicant, whether directly or through attachment and sale of the motor vehicles repossessed from third parties and, that pending the taking of accounts, the warrant of arrest issued on 24lh April 2025 be set aside . Respondent’ s Submissions 16.The Respondent submitted that the application is misconceived, frivolous, legally untenable and an afterthought, calculated solely to obstruct and delay the lawful execution of a valid decree issued on 14th May 2020 in the sum of Kshs. 36,120,000/=. 17.Relying wholly on the its Replying Affidavit sworn in 16th July 2025, the Respondent framed the following six (6) issues for determination: -1.Whether execution of Kshs.36,120,000/- would unjustly enrich the Plaintiff/Respondent.2.Whether the warrant of arrest issued on 24th April 2025 was regularly and lawfully issued.3.Whether the Applicant has demonstrated any payment towards the decretal sum.4.Whether the Applicant has proven that the Respondent repossessed and sold vehicles without accounting.5.Whether the Applicant is entitled to orders compelling the Respondent to render accounts.6.Whether the application meets the threshold for stay or setting aside of execution. 18.The above issues overlap and therefore, they are condensed into three (3) broad issues: -1.Whether execution of Kshs.36,120,000/- would unjustly enrich the Plaintiff/Respondent.2.Whether the warrant of arrest issued on 24th April 2025 was regularly and lawfully issued.3.Whether the Applicant is entitled to orders compelling the Respondent to render accounts. 19.On the first issue, touching on the doctrine of unjust enrichment, it was submitted that the Respondent’s entitlement flows directly from a final judgment and decree of this Court which remains valid, un appealed, unreversed, and unsatisfied and therefore, the Applicant’s reliance on the said doctrine is misplaced, misconceived, and legally untenable in the circumstances of this case. 20.It was emphasized that enforcing a lawful court decree one cannot, in law, be accused of unjust enrichment. It was submitted that execution pursuant to a valid decree is sanctioned by statute and judicial authority and constitutes lawful enrichment, not unjust enrichment. Hence, the decisions relied on by the Applicant including Stephen Karanja Kibuku v Safaricom Ltd (2018] eKLR, do not apply where a court has conclusively determined liability and quantum. 21.On whether the warrant of arrest issued on 24th April 2025 was regularly issued, it was submitted that for five years, the Applicant has made no single post-judgment payment towards settling the decree as confirmed in the Replying Affidavit. 22.It was therefore submitted that Order 22 Rule 2 of the Civil Procedure Rules relied on by the Applicant is inapplicable in this case as there is no evidence to demonstrate any payment or adjustment after judgment. The Respondent further submitted that execution proceedings cannot be converted into a forum for ventilating fresh factual disputes or mounting a collateral attack on a final judgment. 23.Therefore, pursuant to Section 38 of the Civil Procedure Act, the Applicant was served with a Notice to Show Cause dated 7 March, 2025 but failed to demonstrate any payment or even a willingness to settle, and therefore, the warrant followed due process, hence valid and enforceable. 24.The Respondent further submitted that the Applicant’s reference to the sum of Kshs. 625,000 as the only outstanding amount remaining for payment is false and misleading as no payment has been made post judgment. 25.The Respondent therefore reiterated that all receipts relied upon by the Applicant predate the judgment, relate to pre-suit commercial dealings, were produced, evaluated, and considered during the hearing of the suit and they were expressly rejected or netted off by the trial court in arriving at the decretal sum. In the circumstances, it was submitted that the Respondent’s entitlement flows directly from a final judgment and decree of this Court dated 14th May 2020, which remains valid, having not been varied, appealed against or reviewed. 26.It was therefore submitted that the Applicant cannot reintroduce the same evidence through execution proceedings in an attempt to re-litigate the merits of the judgment, as it is prohibited by the doctrines of res judicata and issue estoppel. 27.It was submitted that the decree in judgment of 14th May 2020 was purely monetary. It did not talk of repossession, attachment, or sale of any motor vehicles by the Respondent and therefore, any allegation of post-judgment recovery through sale of vehicles is speculative, legally unsustainable and intended solely to defeat execution. 28.Arguing that execution proceedings cannot be converted into a forum for ventilating fresh factual disputes or mounting a collateral attack on a final judgment, it was submitted that the Applicant neither sought review under Order 45 of the Civil Procedure Act nor lodged an appeal and therefore, he cannot now attempt to amend or undermine the judgment through execution proceedings. 29.In conclusion therefore, the Respondent submitted that while the Applicant invokes equity and constructive trust, it is trite law that: “Equity does not operate to defeat the express provisions of the law or a lawful Judgment of the court.” It was submitted that in this case, the decree represents the court’s final and authoritative determination of what is just and equitable between the parties and therefore, the Applicant’s submissions are a thinly veiled attempt to avoid satisfying a lawful decree, five years after judgment. 30.The Respondent therefore prayed that the Application herein be dismissed; the warrants of arrest issued on 24th April 2025 be upheld and the Applicant be barred from filing any other application in this file. Determination 31.From the pleadings, affidavits, and rival submissions, the following issues arise for determination:1.Whether execution of Kshs.36,120,000/- would unjustly enrich the Plaintiff/Respondent.2.Whether the warrant of arrest issued on 24th April 2025 was regularly and lawfully issued.3.Whether the Applicant is entitled to orders compelling the Respondent to render accounts.4.Who bears the cost of this Application? 32.On the first issue, there is no dispute that a Judgment in this case was delivered by Rachel Ng’etich J, on 14th May 2020. A perusal of that judgment shows that indeed the issues being raised here were raised in the Applicant’s counterclaim including his argument that he owed the plaintiff Kshs. 650,000 but which figure he said was in error and ought to be Kshs. 550,000/- . In its judgment, the trial court held as follows on the issue after hearing both parties in the case:- “ The pleadings and evidence adduced create an impression that the defendant’s defence is intended to create confusion to make it unclear how much is owing to the plaintiff and may benefit in the process.” 33.Ultimately , the trial court entered judgment as follows:-1.Judgment is hereby entered for the Plaintiff against the defendant for Kshs. 36,120,000.2.Defendant’s counterclaim is hereby dismissed.3.Interest on 1 above at Court rate from the time of filing this suit.4.Cost of the suit to the plaintiff. 34.That judgment has not been appealed against, revived or varied and therefore, the issue of what was owing is res judicata and cannot be raised again as done in this application. The decree therein, remains valid and enforceable in law. It was a monetary decree. 35.That being the case, and as well put by the Respondent, execution of such a judgment cannot be termed as unjust enrichment. The arguments by the Applicant on the said warrants lack legal basis. It cannot be used to derail execution of a valid decree. There is no evidence to prove that the Applicant paid any money to the Respondent towards satisfaction of the decree herein, 36.Consequently, this Court is satisfied that due process was followed culminating with warrants issued on 24th April, 2025. The Applicant cannot use execution proceedings to challenge a lawful decree that is in force and as stated herein. 37.Flowing from the above, and from the material before this court, there is no basis for granting the prayer seeking to order the Respondent to render an account. The Applicant’s quest therefore fails and litigation must surely come to an end. 38.In the circumstances, this Court issues the following orders:-1.The Application dated 4th July, 2025 be and is hereby dismissed.2.The warrants of arrest issued on 24th April, 2025 are upheld.3.The Applicant to bear costs of this application. DATED AND SIGNED AT NAIROBI THIS 30TH DAY OF JUNE , 2026.PATRICIA GICHOHJUDGEDELIVERED AT NAKURU THIS 1ST DAY OF JULY , 2026.………………………DR. JOSEPH SERGONJUDGE