https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7340

Muriithi Kireria & Associates Advocates v Crescent Construction Company Ltd (Judicial Review Miscellaneous Application 12 of 2015) [2026] KEHC 7340 (KLR) (Judicial Review) (13 May 2026) (Ruling) Neutral citation: [2026] KEHC 7340 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review Miscellaneous Application 12 of 2015 JM Chigiti, J May 13, 2026 Between Muriithi Kireria & Associates Advocates Applicant and Crescent Construction Company Ltd Respondent Ruling 1.By way of Notice of Motion dated 16th March 2026, the Applicant seeks the following orders;1.Spent2.Spent3.That this Honourable Court do reinstate and/or extend the Orders of stay of execution granted herein dated 28th November, 2025 issued on 2nd December 2025 to facilitate payment of Kshs. 15,505,385.00 and negotiations and/or calculations on the Issue of interest.4.That the Deputy Registrar of this Court be and is hereby directed to calculate the interest outstanding on the Decretal sum taking into account the total amounts Kshs. 19,112,983.93 paid by Respondent/ Applicant, Crescent Construction Co. Ltd to the Decree Holder to date.5.That sums found or agreed to be outstanding and payable as interest be paid in reasonable monthly instalments.6.Spent.7.Spent. 2.The Application is expressed to be brought under Order 50 Rule 1, 2 & 3, of the Civil Procedure Rules and all enabling Provisions of the Law, Order 22, Rules 52, 57, 58, of the Civil Procedure Rules and Section 95 Civil Procedure Act. 3.The Application is premised on the grounds on the face of it and the averments of Mohamed Fizaan Mahamed Ashraf Abdulla, a Director and Shareholder of the Applicant, sworn in support of the Application. 4.The deponent averred that on 2nd December, 2025, this Court granted sixty days stay of execution to facilitate payment of the sum of Kshs. 15,385,598.93 the Decretal sum, and further to facilitate negotiations between the parties on the issue of interest. Further, that the Orders of Stay of execution have lapsed and the Applicant/Respondent’s Auctioneers, Toplink Auctioneers have advertised the property for sale on 19th March 2026, irregularly, the and without fresh warrants of attachment. 5.The deponent averred that negotiations on the issue of interest are ongoing, and yet to be concluded and, that the amount of interest outstanding is disputed as the Respondent has refused to give credit on account of the total amounts received. He stated that the Applicant has so far paid Kshs. 19,112,983.93 to the Respondent and it is necessary to reinstate the Orders of Stay herein, to facilitate the ongoing negotiations on the issue of interest. 6.The Respondents filed a Replying affidavit sworn by Anthony Muriithi Kireria who testified that the Court dismissed the application dated 15th October, 2025 that sought the same orders the applicant seeks in the instant application. Further, that the court granted the parties 60 days from 2ndDecember, 2025 to facilitate negotiations on the issue of interest. He urged that the applicant herein made no attempt to contact the Respondent to agree on the payment of the balance. The Applicant went mute and ignored all the correspondence from the deponents’ Advocates' office dated 17thFebruary 2026. 7.The deponent averred that on 3rd March, 2026, his Advocates instructed an Auctioneer to recover the balance by the letter dated 3rd March, 2026 copied to the Applicants' Advocates. Additionally, he argued that the Applicants did nothing until Friday 13th March 2026 when he purported to address the issue. He deponed that there is no reason to be paid in instalments when the applicant has a property which can be sold to pay the debt. Further, that the amount payable as interest is clear from the warrants issued by the court being the sum of Kshs. 14,328,653/=. Applicant’s submissions; 8.Counsel for the Applicant submitted that the Respondent's auctioneers advertised the Respondent/Applicant's property L.R. No. 209/8869 for auction on 19th March 2026 without fresh Warrants of Attachment and Sale. 9.It is submitted that the original warrants were issued pursuant to earlier proceedings, and having been stayed, new warrants are a legal prerequisite for any fresh execution. 10.It was further submitted that the law is settled that a lawful auction in execution of a decree must be predicated on valid warrants of attachment and sale duly issued by the court. Reliance is placed in the case of Karuri Stores Pharmaceuticals Ltd v Acacia Medical Centre Ltd & Suma Auctioneers (Civil Suit No. 374 of 2010) in this regard. 11.Counsel submitted that the Court had fixed the matter for directions or consent to close the file on 31st March 2026 and by advertising the property for auction on 19th March 2026, the Applicant/Respondent deliberately attempted to pre-empt the court process and deny the Respondent/Applicant the opportunity to be heard. Further, that the Applicant's property is valued at over Kenya Shillings One Billion (Kshs. 1,000,000,000/=), while the claimed balance is a less than Kshs. 7,000,000. He urged that Section 30 of the Auctioneers Act, Cap. 526 and Rule 15 of the Auctioneers Rules require that attachment and sale be proportionate to the debt owed. A disproportionate execution is an abuse of process. He cited the case of West Kenya Sugar Co. Ltd v Tumbo t/a Dominion Yard Auctioneers [2025] KEHC 14268 in this regard. 12.Counsel submitted that the court granted a 60 day stay of execution on 2nd December 2025 to facilitate payment of the decretal sum and negotiations on the issue of interest. The Applicant fully honoured its obligations under those orders and paid Kshs. 19,112,983.93 which exceeds the decretal sum of Kshs. 7,000,000. Negotiations on interest were ongoing and yet to be concluded when the stay lapsed. 13.He submitted that the test for reinstatement or extension of a stay of execution was authoritatively set out by the Court of Appeal in Butt v Rent Restriction Tribunal [1982] KLR 417, where it was held that the court ought to consider:(a)whether the appeal/application is arguable;(b)whether the applicant will suffer irreparable harm if the stay is not granted; and(c)the balance of convenience and, that all three limbs are met in this case. 14.Counsel further submitted that the interest is disputed,and that it has overpaid, and that the auction is irregular raises serious issues of law and fact that merit ventilation. The fact that the Court already granted a 60-day stay once is itself evidence of the arguability of the Respondent/Applicant's case. 15.On irreparable harm, Counsel submitted that the subject property is valued at Kshs. 1,000,000,000/=. Its forced sale at public auction to recover a disputed sum of approximately Kshs. 7,000,000 would occasion irreparable harm that monetary compensation cannot adequately address. Reliance was placed on the case of Omollo v Agricultural Finance Corporation & 2 others (Civil Appeal E041 of 2023) [2025] KEHC 3291. 16.Counsel submitted that the Respondent's legitimate interest is in recovering any interest outstanding. This can readily be satisfied through payment in instalments or through the existing Joint Account funds and there is no prejudice to them in permitting an orderly resolution. The balance of convenience overwhelmingly favours grant of a stay. 17.Further, it submitted that under Order 42 Rule 6 of the Civil Procedure Rules, 2010, the court has jurisdiction to grant a stay of execution where substantial loss would result and there is sufficient cause shown. That the overpayment by the Respondent/Applicant and the ongoing interest negotiations constitutes sufficient cause. 18.Counsel submitted that it is common ground that there exists a Joint Account in the name of Ashford’s& Co. Advocates and Were & Oonge Advocates at the National Bank of Kenya, Yaya Centre, in which the funds are held. The account has two signatories and despite repeated requests by email on 18th March 2026, a subsequent reminder, physical delivery of documents by clerk, and the Bank itself contacting the Respondent's advocates, the Respondent has refused and/or neglected to execute the RTGS transfer forms. 19.Counsel submitted that the Court has inherent jurisdiction under Section 3A of the Civil Procedure Act, Cap. 21 and Rule 1(2) of the Civil Procedure Rules to make such orders as may be necessary to prevent the ends of justice from being defeated. That where one party to a joint account frustrates the operation of that account in defiance of court orders, the court may give directions that achieve the purpose of those orders without requiring the defaulting party's cooperation. 20.He cited the case of Atenya & another v Atenya & 2 others (Suing as the Legal Representative of the Estate of Joyce Mukye Mwoye - Deceased) (Civil Appeal E018 of 2023) [2025] KEHC 15075 (KLR) in this regard. 21.Counsel submitted that the Applicant seeks an order under Order 22 Rule 57 of the Civil Procedure Rules directing the National Bank of Kenya to effect the transfer of funds to Were & Oonge Client Account without the Applicant/Respondent's signature, and authorizing the Respondent/Applicant's advocates to execute all necessary documents. That this is a proportionate and legally sound remedy given the Applicant/Respondent's deliberate obstruction. 22.On whether any outstanding interest should be paid by reasonable monthly instalments, Counsel cited Order 21 Rule 12 of the Civil Procedure Rules, 2010, the court has express power to order that a decretal sum including interest be paid in instalments. Further, that the Applicant has demonstrated its willingness and ability to pay by fully settling the principal decretal sum and paying over Kshs. 19 million in total. What remains is a disputed interest computation. Reliance was placed on Kagiri Kang’ethe & Co Advocates v Wachira [2026] KEHC 832 (KLR). 23.Counsel submitted that the outstanding interest is itself disputed as the Respondent has refused to credit the Applicant for the total amounts already received. That the Deputy Registrar should be directed to compute the interest outstanding taking into account all payments made, before any execution can lawfully proceed. Counsel urged that the Respondent's conduct throughout these proceedings discloses a pattern of bad faith and abuse of court process, listing examples of the same and cited the decision of the Employment and Labour Relations Court held in Muchunu v NRS Sacco Society Limited [2025] KEELRC 3449 in this regard. 24.Counsel urged the court to allow the Application as prayed. The Respondents’ submissions; 25.Counsel for the Respondent reiterated the contents of the replying affidavit and urged that the application dated 15th October 2025 was dismissed by this court and the court subsequently made the following orders by consent of the parties on 2nd December, 2025:-a.A sum of Kshs. 15,505,385/ = deposited in a joint account in the names of the parties' advocates be released to the firm of Were & Oonge advocates.b.A stay of execution for 60 days be and is hereby granted to facilitate negotiations on the issue of interest.c.The parties to mention the matter on 31.03.2026 to record a consent and close the file. 26.Counsel submitted that the Orders of 2nd December 2025 were consent orders agreed upon by the parties. Thereafter the Respondent/ Applicant herein in utter disregard of the consent orders recorded in court did not make any attempts to reach out to the Applicant/ Respondent despite letters and reminders. That the 60 days stay that the parties had given themselves by consent and recorded in court lapsed. 27.Counsel further submitted that there was no effort on the part of the Respondent/ Applicant to either seek consensus, extend the orders or seek in any way to resolve the issue. The Respondent/ Applicant then commenced execution by way of instructions to auctioneers to recover the balance of the purchase price which was a sum of Kshs. 14,328,653/=. 28.Counsel further submitted that the warrants that were issued by the court were still valid. Further, that the orders of the court granted a stay of 60 days from 2ndDecember, 2025 and a Mention Date of 31st March 2026 which mention was to apprise the court of the outcome of the negotiations. That the orders having expired, nothing therefore stopped the execution process from proceeding. 29.On whether the orders of stay of execution granted on 2nd December 2025 ought to be reinstated or extended, Counsel urged that the consent orders were to facilitate negotiations for a limited period of 60 days. The orders lapsed on account of the indolence on the part of the Respondent/ Applicant and no negotiations took place by the parties at all. 30.Counsel submitted that there is no sound reason that has been given to warrant the court to grant the order of extension. Counsel submitted that the Applicant has not shown any basis as to why the court should consider the prayer for payment in instalments. 31.Counsel maintained that the Applicant has failed to prove that the intended auction of LR 209/8869 advertised for 19th March 2026 was irregular, unlawful and ought to be stopped. He urged the court to allow the execution to proceed. Analysis and determination; 32.On 2nd December, 2025 the court made the following orders by consent of the parties:-a.A sum of Kshs. 15,505,385/ = be deposited in a joint account in the names of the parties' advocates and be released to the firm of Were & Oonge advocates.b.A stay of execution for 60 days be and is hereby granted to facilitate negotiations on the issue of interest.c.The parties to mention the matter on 31.03.2026 to record a consent and close the file. 33.Under Order 42 Rule 6 of the Civil Procedure Rules, 2010, the court has jurisdiction to grant a stay of execution where substantial loss would result and there is sufficient cause shown. 34.There is an impending sale of the applicant’s property which according to the applicant is valued at Kshs. 1,000,000,000/= at a public auction to recover Kshs. 7,000,000. There exists a Joint Account in the name of Ashford’s & Co. Advocates and Were & Oonge Advocates at the National Bank of Kenya, Yaya Centre, in which the funds are held. 35.Under Order 21 Rule 12 of the Civil Procedure Rules, 2010 the court has the power to order that a decretal sum including interest be paid in instalments. 36.Although the 60 days stay that the parties had given themselves by consent and recorded in court lapsed, the court notes that there is a dispute on the interest computation. It will be unjust to allow the impending auction to proceed on the basis of an amount that is in dispute in so far as interest is concerned. Determination: 37.The applicant is partly successful.Order;1.The Deputy Registrar of this Court is hereby directed to calculate the interest outstanding within 14 days today’s date.2.The sums found to be outstanding and payable as interest in order 1 shall be paid within 14 days thereafter.3.An order of status quo is hereby issued pending the payment in order 2 above. DATED, SIGNED AND DELIVERED VIRTUALLY AT ELDORET THIS 13TH DAY OF MAY, 2026.………………………J. CHIGITI (SC)JUDGE