https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12740

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPELLATE DIVISION** **CIVIL APPEAL NO. E851 OF 2023** **MEDIPLAN LIMITED..........................................APPELLANT/APPLICANT** VERSUS **MONICA TULI NZAMBI..............................................1ST RESPONDENT** **BRITAM LIFE ASSURANCE CO. (K) LTD…………......2ND RESPONDENT** **RULING** **Background** 1. The Applicant was the unsuccessful appellant in the instant appeal that arose from Milimani MCCC No. E6178 of 2020. 2. In a judgment delivered on 23rd January 2025, this Court (differently constituted) varied the judgment of the subordinate court by holding the Applicant 100% liable while exonerating the 2nd Respondent from liability. The award of Kshs.1,000,000 in general damages was upheld and each party was ordered to bear its own costs of the appeal. 3. The 1st Respondent subsequently extracted a decree from the subordinate court and commenced execution by obtaining warrants of attachment and proclaiming various assets belonging to the Applicant, including hospital equipment, computers, beds and other operational assets. The Applicant contends that the execution is unlawful, thus precipitating the present application. The Application 1. This ruling is in respect to the Notice of Motion dated 4th February 2026 which is brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 21 Rule 12(2), Order 42 Rule 34 and Order 51 of the Civil Procedure Rules. 2. The Applicant seeks, principally, orders for stay of execution, setting aside of the warrants of attachment and proclamation, restraint against the sale of its proclaimed tools of trade, leave to liquidate the decretal sum by instalments and directions on payment. 3. The application is supported by the affidavits of **Dr. Harriet Mwithaga** sworn on 4th February 2026 and 15th March 2026. **Applicant's submissions** 1. Counsel for the Applicant submitted that the execution is founded upon an irregular decree. 2. It was argued that following determination of the appeal, Order 42 Rule 34 of the Civil Procedure Rules required a decree to issue from the High Court before transmission to the subordinate court. The Applicant argued that instead, the 1st Respondent extracted and executed a decree founded upon the subordinate court judgment, notwithstanding that the High Court had varied that judgment. It was submitted that the decree improperly included costs and interest that had not been awarded by the appellate court. Reliance was placed on ***Waweru & Another vs. Kyungu* [2023] KEHC 3792 (KLR)** and ***Sumac DTM Ltd & 2 Others vs. Siele* [2024] KEHC 4134 (KLR)** for the proposition that where an appellate court varies a judgment, the decree must conform strictly with the appellate decision. 3. It was further submitted that the auctioneer proclaimed hospital beds, laboratory equipment, computers, printers, reception furniture and other equipment necessary for the running of the Applicant's medical facilitywhich are items that constitute tools of trade protected under Section 44(1)(ii) of the Civil Procedure Act and are therefore exempt from attachment. 4. The Applicant further submitted that owing to the financial consequences arising after the negligence claim, including loss of major clients, rent arrears and cash flow constraints, it was unable to settle the decretal sum in one instalment. It urged the Court to invoke its discretion under Order 21 Rule 12 and allow payment by instalments. Reliance was placed on evidence showing financial distress and willingness to liquidate the decretal amount gradually. 5. Through the Further Affidavit, the Applicant also introduced evidence that some of the attached medical equipment had been purchased by third-party investors who retained beneficial interests therein. It was also contended that attachment of hospital computers exposed confidential patient data contrary to data protection obligations. **1st Respondent's submissions** 1. The 1st Respondent opposed the application through her Replying Affidavit and written submissions. 2. Counsel for the 1st Respondent submitted that the Applicant had fully participated in both the trial and appellate proceedings and that execution followed a valid judgment. It was argued that the Applicant merely sought to delay the successful litigant from enjoying the fruits of her judgment. 3. Regarding payment by instalments, counsel submitted that financial hardship alone is insufficient as the Applicant had not disclosed its financial position candidly nor demonstrated sufficient cause to warrant exercise of the Court's discretion under Order 21 Rule 12. 4. Reliance was placed on ***Keshvaji Jethabhai & Bros Ltd vs. Saleh Abdulla* [1959] EA 260**, where the Court outlined the relevant considerations in applications for payment by instalments, namely; the circumstances under which the debt arose, the conduct of the debtor, the debtor's financial position and the debtor's bona fides in offering payment. 5. Counsel also relied on ***Diamond Star General Forwarding Ltd vs. Ambrose D.O. Rachier* [2018] eKLR**, where the Court held that an applicant must candidly disclose his financial position and demonstrate inability to pay before instalment orders can issue. 6. It was further submitted that the Applicant had merely lamented its financial difficulties without making any meaningful proposal for settlement and that no sufficient reason had been established to interfere with execution. **Issues for determination** 1. Having considered the pleadings, affidavits and rival submissions, I find that the main issue for determination is whether the Applicant has made out a case for the granting of the orders sought in the application. **Analysis and Determination** 1. The Applicant's principal complaint is that execution proceeded on the basis of a decree extracted from the subordinate court instead of one reflecting the appellate judgment. 2. The judgment delivered by this Court on 23rd January 2025 varied the lower court judgment by holding the Applicant solely liable while absolving the 2nd Respondent and directing that each party bear its own costs of the appeal. It follows that any decree intended to enforce that judgment had to faithfully mirror the appellate decision. Indeed, Order 42 Rule 34 contemplates certification and transmission of the appellate decree to the trial court before execution. I find that a decree that disregards material variations introduced by the appellate judgment cannot be said to be regular. 3. I therefore agree with the Applicant that execution cannot properly proceed on the basis of a decree that does not accurately reflect the judgment sought to be enforced. 4. On attachment of tools of trade, Section 44(1)(ii) of the Civil Procedure Act exempts from attachment tools and implements necessary for the performance of one's trade or profession. 5. The proclamation exhibited by the Applicant reveals that the attached assets include hospital equipment, beds, laboratory machinery, computers and other operational assets integral to the running of a medical facility. I find that their removal would effectively cripple the Applicant's operations and undermine continued provision of medical services. Such equipment falls squarely within the statutory protection afforded to tools of trade. 6. The Applicant has also produced evidence to show that certain equipment belongs beneficially to investors who are not parties to these proceedings. While ownership may ultimately require separate determination, if disputed, the evidence reinforces the need for caution before allowing sale of the attached equipment. 7. On payment by instalments, the Court's discretion under Order 21 Rule 12 must be exercised judiciously. The principles in ***Keshvaji Jethabhai & Bros Ltd vs. Saleh Abdulla*** (supra) remain applicable. Although the Applicant has demonstrated financial difficulties, it has not placed before Court a concrete repayment proposal specifying the amount of each instalment or the timelines for payment. I find that mere financial hardship cannot, without more, justify postponement of a decree-holder's enjoyment of a lawful judgment. The Applicant must make a realistic proposal capable of balancing both parties' interests. 8. The above findings notwithstanding, the Court cannot ignore that immediate realization of the attached hospital equipment would effectively shut down an operational medical facility, thereby prejudicing patients, employees, investors and even diminishing the Applicant's ability to satisfy the decree. 9. In my view, the interests of justice are better served by preserving the Applicant's operations while allowing execution to proceed through lawful means upon extraction of a proper decree. **Disposition** 1. Accordingly, I make the following orders:- 2. ***The Notice of Motion dated 4th February 2026 partially succeeds.*** 3. ***The warrants of attachment and proclamation founded upon the impugned decree are hereby set aside.*** 4. ***The 1st Respondent shall extract a decree conforming strictly with the judgment of this Court delivered on 23rd January 2025 before undertaking any further execution.*** 5. ***The proclaimed hospital equipment, medical machinery, hospital beds, laboratory equipment and other tools necessary for the Applicant's medical practice are declared exempt from attachment pursuant to Section 44(1)(ii) of the Civil Procedure Act.*** 6. ***The prayer for payment by instalments is declined for want of a definite and workable repayment proposal, without prejudice to the Applicant filing an appropriate application accompanied by a specific payment schedule.*** 7. ***Each party shall bear its own costs of the application.*** **It is so ordered.** **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2026** **HON W A OKWANY** **JUDGE**