https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10013

Kitek (7) Ltd v Wanakuta & 9 others (Sued in Their Capacities as officials of the Salvation Army) (Civil Case 166 of 2012) [2026] KEHC 10013 (KLR) (Commercial and Tax) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10013 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Civil Case 166 of 2012 F Gikonyo, J July 9, 2026 Between Kitek (7) Limited Plaintiff and Chairman - Colonel Charles Wanakuta 1st Defendant Secretary-Colonel John Swinfen 2nd Defendant Assistant Secretary-Colonel Wycliffe Angoya 3rd Defendant The Territoral Commander-John Malaba 4th Defendant The Territoral Commander-John Wainright 5th Defendant The Territoral Commander-William Roberts 6th Defendant The Chief Secretary - Kenneth G. Hodder 7th Defendant The Chief Secretary-Col. Gabriel Kathuri 8th Defendant The Chief Secretary - Benjamin Mnyampi 9th Defendant The Financial Secretary - Lt. Col. Jeqeza Timothy Mbaso 10th Defendant Sued in Their Capacities as officials of the Salvation Army Ruling 1.The defendants who are the applicants in the notice of motion dated 19th May 2025 expressed to be brought under sections 28, 29 and 66 of the Civil Procedure Act, Order 22 Rule 7 and Order 51 Rule of the Civil Procedure Rules, 2022 seek the court to adoption of the Court of Appeal’s judgment of 31st March 2023 and its orders of 8th November 2023 as the order and decree of the High Court. That upon adoption, the court to issue warrants of attachment and sale to Garam Investment Auctioneers who have been nominated by the defendants/applicants to undertake execution. 2.The application is premised on the grounds set out in its body and the supporting affidavit sworn by Lucy Mwaura, Advocate on 19th May 2025. 3.The grounds are: -1.The plaintiff filed an appeal, and the defendants filed a cross-appeal before the Court of Appeal against the judgment of the court dated 9th June 2017 in this matter.2.The Court of Appeal overturned the judgment of the High Court, dismissed the appeal and allowed the cross-appeal.3.The defendants/applicants now wish to execute the order issued by the Court of Appeal.4.It is in the interest of justice that this application be granted as prayed. 4.There was no response filed by the plaintiff despite service and filing of return of service as directed by the court. Analysis and Determination 5.I have considered the application, the supporting affidavit and the exhibits. 6.The applicant exhibited the following; copies of: -1.High Court Judgment dated 9.6.2017;2.Decree dated 9.6.2017;3.Notice of Appeal and Notice of Cross Appeal dated 21.6.2017 and 6.3.2018 respectively;4.Court of Appeal’s Judgment dated 31.3.2023.5.Order dated 31.3.2023. 7.Through the present application the applicants seek the adoption of the Court of Appeal’s judgment of 31st March 2023 and its orders of 8th November 2023 as the order and decree of the High Court. 8.The applicants cross appeal against the judgment of 9.6.2017 before the Court of Appeal was successful. Para. 71 of the Court of Appeal’s Judgment dated 31.3.2023 states: -“In conclusion, we find the appeal devoid of merit and dismiss it with costs to the respondent. We nonetheless allow the cross-appeal with costs to the cross appellant/ respondent in the appeal. It is so ordered.” 9.The same is expressed in the Order of the same date issued on 8.11.2023 by the Deputy Registrar, Hon. L. D. Ogombe. 10.In the subject Notice of Cross Appeal, the applicants sought that the respondent is ordered to refund the applicant the sum of Kshs. 5,214,214.59 paid towards the High Court judgment within 30 days from the judgment of this court. 11.I find that the applicants’ application is merited. It is allowed in the following terms: -1.the respondent is ordered to refund the applicant the sum of Kshs. 5,214,214.59 paid towards the High Court judgment within 30 days from the date of this ruling.2.In default, warrants of attachment and sale to issue to Garam Investment Auctioneers. DATED, SIGNED AND DELIVERED THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 9TH DAY OF JULY, 2026-----------------F. GIKONYO MJUDGEIn the presence of: -Ms. Wanjeri for defendantNo appearance by plaintiffCA- Ivan/Aggrey