https://new.kenyalaw.org/akn/ke/judgment/scc/2026/184

Lingawa Self Help Group (Through its Officials Gitau Ng'ang'a and Daniel Mburu) v Gathirwa t/a Eldera Management Agencies (Commercial Case E2763 of 2024) [2026] SCC 184 (KLR) (24 July 2026) (Ruling) Neutral citation: [2026] SCC 184 (KLR) Republic of Kenya In the Small Claims Court at Eldoret Commercial Case E2763 of 2024 ME Aligula, RM July 24, 2026 Between Lingawa Self Help Group (Through its Officials Gitau Ng'ang'a and Daniel Mburu) Applicant and Elijah Gathirwa t/a Eldera Management Agencies Respondent Ruling 1.By a notice of motion dated 2nd June, 2026 pursuant to provisions of section 3A, 34 of the Civil Procedure Act, the applicant seeks the following orders:1.spent2.Spent3.That the execution proceedings as commenced by the claimant be set - aside and the warrants of attachment and sale issued to topleaf auctioneers be recalled.4.That the charges for the auctioneer arising from the execution be met by the claimant5.That topleaf auctioneers do file their bill of costs arising from the execution for assessment in accordance with rule 55 of the auctioneers’ rules 1997.6.That topleaf auctioneers do refund ksh 106,000/- paid to it by the respondent7.That the costs of the application be provided for. 2.The application is premised on the grounds therein and is further supported by the affidavit of Elijah Gathirwa sworn on 2nd June, 2026. The applicant contends that on 9th December, 2025 topleaf auctioneers proclaimed his property over a default judgment and annexed the proclamation as A. That on 11th December, 2025, the auctioneers again returned even before the 7 days period of service of proclamation had lapsed and carted away his property. In order for the applicant to obtain release of his property he was compelled to pay the auctioneers ks 116,000/- towards the judgment and ksh 90,000/- as auctioneer's charges, he annexed the receipt for auctioneer charges as B. 3.The applicant maintained that again on 25th May, 2026 topleaf auctioneers attached his vehicle registration number KBC 055Q without any proclamation. On 29th May, 2026 he visited the decree holders’ offices and an agreement was reached on settlement of the judgment where upon he paid ksh 60,000 he annexed the agreement as C, however, the applicant learnt that the auctioneers had already advertised his vehicle for sale on 3rd June 2026 and also after receiving ksh 16,000/- he annexed the advertisement as D. The applicant prayed that the court halts the sale of his vehicle and set aside the execution process because he was not served with the entry of judgment , the warrants of attachment issued by topleaf auctioneers and due to be returned to court on 20th July 2026 has the sum of ksh 231,919.47/- which does not factor in the payment earlier made hence it is invalid, that further the auctioneers have charged excess auctioneer charges while carrying out invalid execution and failed to serve proclamation and the second warrant. 4.The application is opposed by the respondent vide the replying affidavit sworn on 22nd June, 2026 by Daniel Mburu Nganga. The respondent deposed that the application has been preferred to delay him from enjoying the fruits of the judgment and the same is frivolous, vexatious and an abuse of court process and it is vehemently opposed. The respondent maintains that a regular judgment was delivered on 22/1/2025 upon the applicant defaulting to defend this cause. The respondent taxed its party-to-party costs dated 24th January 2025 and was issued with a decree on 22nd January 2025 and it annexed the decree ad DMN 1. That the said judgment has neither been reviewed or appealed. 5.The respondent maintained that the respondent was duly served with all the pleadings and opted not to defend the suit and the execution process is pursuant to the default judgment entered. Further that the applicant was notified of the default judgment vide the notice of entry of judgment dated 14/2/2025. The respondent deponed that the applicant committed himself in writing on 6/10/2025 to settle the decretal amount but failed to do so and it necessitated issuance of the warrants of execution. The respondent deposes that upon the applicant making the partial payment, the applicant was advised to visit the auctioneer yard who had attached his goods to negotiate on the charges for the proclamation, attachment and storage charges. that further the asset was released on a running attachment on condition that the applicant pays the decretal sum and cost in full and the applicant has not made the full payment as agreed. The deponent further indicated that he is aware the motor vehicle was advertised for sale legally and the sale by public auction was slated for 3/6/2026. 6.The application was canvassed vide written submissions. Having addressed my mind to the depositions made as well as the submissions by the claimant, it is my considered opinion that the main issue for determination is; whether the application is meritorious? 7.Default judgment was entered against the respondent herein on 22/1/2025 for a sum of ksh 194,560/- plus costs and interest, the decree was issued for ksh 231,919.47/-. It is notable that to-date the decree issued is yet to be satisfied fully. 8.Vide the letter dated 6/10/2025 the respondent wrote the claimant's counsel, proposing to be paying ksh 25,000/- on or before 25th of every month effective 1st November, 2025, the same was not paid until when Top leaf auctioneers proceeded to proclaim the applicant. The proclamation is dated 3/12/2025. I must note that there is no proof that the proclamations were served upon the applicant but never the less, it is submitted by the applicant his property was proclaimed and before lapse of 7 days the auctioneers carted away his property and he paid ksh 116,000/- towards the judgment and ksh 90,000/- being auctioneers fees. The decretal balance was then ksh 115,919.47/-. This court is unable to verify that the goods were attached before lapse of the 7 statutory days. 9.The partial payment was made upon issuance with the warrants of attachment dated 21st May, 2026, i have not seen any proclamation for the said balance upon the reissuance of the warrants. However, the applicant submits that his motor vehicle registration number KBC 055Q was attached on 25th May, 2026. Nevertheless, on 29/5/2026 the respondent's counsel wrote to the auctioneers confirming receipt of part of the decretal sum and requested them to halt the execution proceeding. I note that the letter was done the same day the applicant visited their offices, though there is no proof that the auctioneers received the letter. Despite the above, the vehicle had been advertised on 26th May, 2026, before the partial payment was made but based on the initial proclamation issued, this court wonders whether the whole process was regular? 10.Rule 12(1) (b) reads “Movable other than perishable goods and livestock1.Upon receipt of a court warrant or letter of instruction, the auctioneer shall, in case of movables other than goods of a perishable nature and livestock:a)Record the court warrant or letter of instruction in the register;b)Prepare a proclamation in Sale Form 2 of the Schedule indicating the value of specific items and the condition of each item, such inventory to be signed by the owner of the goods or an adult person residing or working at the premises where the goods are attached or repossessed, and where any person refuses to sign such inventory the auctioneer shall sign a certificate to that effect; in writing, give to the owner of the goods seven days’ notice in Sale Form 3 of the Schedule within which the owner may redeem the goods by payment of the amount set forth in the court warrant or letter of instruction; on expiry of the period of notice without payment and if the goods are not to be sold in situ, remove the goods to safe premises for auction; ensure safe storage of the goods pending their auction; Arrange advertisement within seven days from the date of removal of the goods and arrange sale not earlier than seven days after the first newspaper advertisement and not later than fourteen days thereafter; 11.Arising from the above rules the proclamation must therefore be signed by the owner of the goods or an adult person residing or working at the premises where the goods are attached or repossessed. The applicant states the auctioneer never served him with any proclamations. I have not seen any other proclamations and the earlier issued one, has not been signed by the applicant and /or agent it is just indicated that the applicant was served. The burden shifted to respondent to disprove the allegations. This lends credence to the fact that the auctioneer may not have visited the premises and if they visited, they must have ignored the procedure required under the law. 12.I have read the decision in Ramogi v Great Lakes University Kisumu; Odhiambо T/A Jenks Auctioneers (Interested Party) [2025] KEELRC 437 (KLR) and I’m persuaded by the following dictum of my brother Nzioki Makau J.;- “ In my considered view, having failed to realize the full decretal sum in the execution meted in June 2024, the Decree Holder should have moved the Court to obtain leave to execute fresh warrants in terms of Rule 12(2)(b) of the Auctioneers Rules. The Auctioneer and the Decree Holder were required to render accounts and strictly adhere to the Auctioneers Act and the Rules thereunder. Having failed to do the correct thing, both the Decree Holder and the Interested Party were guilty of misdeed the court will mulct them with costs of this application to be borne jointly and severally.’ Emphasis is mine." 13.Clearly the rules and procedure as discussed hereinbefore were ignored and the court cannot be seen to sanction impunity. It is the finding of this court that the process was irregular and nothing can come out of an irregularity. 14.About the auctioneers’ costs of ksh 90,000/- earlier made by the applicant, the same having been paid upon the warrants being issued and the applicant having not settled the decretal sum at the time, it is not doubted that the auctioneers were right to proclaim and it was confirmed that he paid the fees to secure the release of his goods. There is nothing on record to demonstrate that the goods were attached before the expiry of the seven-day period. If the amount was outrageous, the applicant would have moved court, at this juncture he is now attempting to mend fences after the fact. However, any further payment to the auctioneers with respect to the irregular proclamation leading to the attachment of the vehicle is unlawful and should not be let to stand and the applicant should be refunded. 15.Having found the process of attaching the vehicle and advertising was irregular it is my considered view that the auctioneer cannot under these warrants be entitled to fees as against the applicant. I have already noted nothing comes out of an illegality and the auctioneer cannot benefit from an irregularity for which he was party to. 16.The upshot of the foregoing is that the application dated 2nd June, 2026 is merited to the extent that: The execution proceedings leading to the attachment and advertisement of motor vehicle registration number KBC 055Q is set aside and the warrants of attachment and sale issued to top leaf auctioneers is hereby recalled, the charges for the auctioneer arising from irregular execution be met by the claimant, Topleaf auctioneers do file their bill of costs in court if need be. Each party to bear its own cost. 17.Leave to appeal is granted. RULING DATED AND DELIVERED AT ELDORET THIS 24TH DAY OF JULY 2026M. E. ALIGULARMIn the presence ofC/A Mr. LepatoiyeMr Ogongo for the claimant/ respondentN/A for the applicant