https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9530

Mwangi & another v Ngugi & 2 others (Civil Case 21 of 2020) [2026] KEHC 9530 (KLR) (Civ) (2 July 2026) (Ruling) Neutral citation: [2026] KEHC 9530 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Civil Civil Case 21 of 2020 F Gikonyo, J July 2, 2026 Between Bilha W. Mwangi 1st Plaintiff Kemboy Julius Kipkosgei t/a Kemboy Law Advocates LLP 2nd Plaintiff and Njeri Benson Ngugi 1st Respondent Igeria Arthur Konye 2nd Respondent Njoroge David Ngumbu t/a Igeria & Ngugi Advocates 3rd Respondent Ruling 1.The defendants/ applicants filed the notice of motion dated 31.7.2025 seeking recognition of the court orders issued on 21.7.2022 in HCCC E112 of 2021, Dr. Sam Thenya v Brian Martin Francis & 9 Others, and hold that they are not liable to the plaintiffs/ respondents for the sum of Kshs. 53,270,698/-. 2.They also seek that the court declares the warrant of attachment dated 30.7.2025 and the proclamation notice dated 31.7.2025 null and void for violating Order 22 Rule 18 of the Civil Procedure Rules. 3.The application is brought under Order 40 Rule 1 and 4 of the Civil Procedure Rules, Section 10 of the Judicature Act, Rule 2 (2), 3 (1) and 20 of the High Court Practice and Procedure Rules and Sections 1A, 1B, 3A and 63 of the Civil Procedure Act. It is supported by the affidavits sworn by the applicants’ partner, Njoroge David Ngumbu on 31.7.2025 and 9.10.2025. 4.The applicants’ gravamen is that the respondents commenced execution proceedings against them despite their discharge from liability by the courts ruling of 19.5.2022 in HCCC E112 of 2021. 5.The respondents filed a replying affidavit sworn by Bilha W. Mwangi on 15.9.2025. Their core contentions are that the application is an abuse of the court process for being res judicata. They highlighted the numerous applications filed by the applicants. 6.The respondents asserted that the court is functus officio having entered judgment in their favour on 5.2.2021 and having adopted the consent order of 13.7.2022 in both matters. 7.The respondents asserted that they applied for execution of the unpaid portion of the decretal amount which was not the subject of the related matter. Analysis and Determination 8.Issues arising relate to whether the application is res judicata, whether the court is functus officio and whether the applicants ought to be discharged from liability and validity of the warrants of execution. 9.The crux of the dispute is the accumulated interest of Kshs. 53,270,698/-. 10.The respondents instructed auctioneers who took out fresh warrants of attachment and proclamation upon the applicants. They seek to recover the accumulated interest of Kshs. 53,270,698/-. Res judicata 11.The respondents contended that the instant application is res judicata due to previous applications seeking similar orders. 12.The court has considered the previous applications filed by the applicants in the context of the respondents’ plea of res judicata. However, the court’s finding is that the applications of 1.9.2021 and 27.6.2022 were in respect of earlier warrants of attachments and other subject matters. Therefore, res judicata cannot be invoked here. Discharge from liability and validity of the warrants 13.This suit was initiated by the respondents against the applicants seeking enforcement of their professional undertaking dated 7.5.2018 and payment of Kshs. 102,378,022.93. 14.In the subject professional undertaking, the applicants undertook to: -“pay the balance of the consideration amounting to the sum of Kenya Shillings Nine Hundred and Forty Million only (Kshs. 940,000,000/- upon successful registration in favour of the borrower (or his nominee) of the share transfer Forms relating to 100% of the Shares in Adlife Plaza Limited (APL) and 80% of the shares in Adlife Management Company Limited (AMCL) herein after referred to as “the companies” and the successful registration of the charge in favour of KCB over the title relating to LR No. 1/366 and completion of the transaction…” 15.The court entered judgment on 5.2.2021 for the respondents against the applicants for Kshs. 102,378,022.93 with interest thereon at 14 percent per annum until payment of the suit. The court also awarded the respondents the costs of the suit. 16.The respondents moved to execute but in the ruling of 19.5.2022, the court held that no attachment or execution of the funds could be levied pending the determination of HCCC E112 of 2021. For these and other reasons, the court set aside the warrants of attachment and sale for being null and void. 17.Through a separate ruling of 19.5.2022 in HCCC E112 of 2021, the court issued an interim measure of protection pending the hearing and determination of an arbitration matter between the 1st respondent (Dr. Sam Thenya) and the 1st to 6th applicants therein. The court further directed that Kshs. 102,378,022.98 be deposited in a joint interest-earning account in the names of the advocates for the applicant and the 1st to 6th respondents pending the hearing and determination of the arbitration. 18.The court also looked at the purpose of the funds and held that there was an ongoing arbitration touching on the judgment sum of Kshs. 102,378,022.93. The basis for the orders was as follows: -“...the 1st to 6th respondent are out to circumvent the agreement for ring-fencing of the sum of Kshs. 102,378,022.98. Although the said suit was brought by the 8th respondent on the professional undertaking given to him by the 9th to 11th respondent, it is not lost to the Court that the same was for the benefit of the 1st to 6th respondent to escape responsibility under that agreement.” 19.On 13.7.2022, the court issued an order to the effect that the 1st respondent (Dr. Sam Thenya) deposits the sum of Kshs. 53, 270, 698/- in the same joint account. The sum was accumulated interest in respect of the decretal amount. 20.On 15.5.2025, this court issued contempt orders against Dr. Sam Thenya, on the subject matter of this application, the Kshs. 53,270, 698/- interest, thus: -“ 51.Accordingly, the 1st respondent is in contempt of court. 52.I will however, give him reprieve; to purge the contempt by depositing the Kshs 53, 270, 698/- in the same joint account within 30 days of today which failing he may be sentenced to a punishment that the court will determine upon expiry of the period allowed for purging the contempt.” 21.On 24.7.2025, this court found that Dr. Thenya had failed to comply with the succinct, conditional, time-bound and self-executing orders directing him to deposit the Kshs. 53,270, 698/- interest into the joint account. The court therefore held that the interim measure of protection lapsed upon expiry of the time given to the respondent to comply with the conditions stated in the order. 22.The court accordingly issued an order directed at I & M Bank Limited to release of the monies and accrued interests held in the joint account number 00203xxxxxxxx200 deposited pursuant to the Order of Court issued on 19th May 2022 to the firm of Gichuki King’ara & Co. Advocates for onward transmission to the applicants. Conclusion 23.From the above, the interest sum in issue was not express term of the professional undertaking. It was an incident in interest awarded by the court. 24.However, on 13.7.2022, the court issued an order to the effect that the 1st respondent (Dr. Sam Thenya) deposits the sum of Kshs. 53, 270, 698/- in the same joint account where the principal sum was deposited. The sum was accumulated interest in respect of the decretal amount herein. 25.Therefore, the interest as the principal sum became subject of the interim measure of protection constituting the basis for action against Dr. Thenya as a consequential obligation arising from interim preservation orders. This was further reinforced because of Dr. Thenya’s non-compliance and contempt of court. 26.Accordingly, it is incorrect for the respondents to state that the sum due has no nexus with the other related matters. 27.The obligation to pay or account for the interest in question was expressly directed at Dr. Thenya, who was the subject of the court’s orders. This was subsequent to the judgment sought to be enforced which has implications on the warrants herein. 28.Thus, the court finds that the warrants of attachment and proclamation dated 30.7.2025 and 31.7.2025 were taken out regardless of the circumstances of this matter and all related development. They may not escape an assumption of bad faith or deliberate distortion of circumstances. Therefore, they are invalid. 29.To fully deal with the discharge of liability of the applicants, several factors are relevant. Payment of the interest in question has not been made. Contempt of court by Dr. Thenya in respect of the said funds has not been purged. The status of the referral of the dispute to another arbitrator by Justice P. J. Otieno on 31.1. 2025, is not clear. 30.For similar reasons, the court is not functus officio. 31.The court thus finds that applicants’ prayer for discharge of liability is premature. Disposal 32.The application dated 31.7.2025 only succeeds to the extent that fresh warrants of attachment and proclamation dated 30.7.2025 and 31.7.2025 are declared null and void. 33.The request for discharge of liability is deferred. DATED, SIGNED AND DELIVERED AT NAIROBI THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 2ND DAY OF JULY, 2026-------------F. GIKONYO MJUDGEIn the presence of: -Mirie for Decree HolderGichana for Ngugi for defendantCA – Ivan/Aggrey