https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4542

Harun t/a Nelson Harun & Company Advocates v Kaluworks Limited & 2 others (Civil Suit 181 of 2019) [2026] KEELC 4542 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEELC 4542 (KLR) Republic of Kenya In the Environment and Land Court at Thika Civil Suit 181 of 2019 JA Mogeni, J July 13, 2026 Between Nelson Muturi Ndumbeiya Harun t/a Nelson Harun & Company Advocates Plaintiff and Kaluworks Limited Defendant and The Co-operative Bank of Kenya Ltd Applicant and Booth Extrusion Ltd Defendant Ruling 1.Under Sections 1A, 1B & 3A of the Civil Procedure Act, Sections 3 of the Environment and Land Court Act, Order 45 Rule 1 & Order 51 Rule 1 of the Civil Procedure Rules, 2010 and all other enabling provisions of the Law the Objector/Applicant brought this application dated 10/11/2025 seeking the following orders:i.Spent.ii.That pending the inter partes hearing and determination of this application and the Objection Application, this Honourable Court be pleased to issue an order of stay of execution in respect of any property belonging to and/or registered in the name of the 1st Defendant herein.iii.That this Honourable Court be pleased to vary and/or set aside orders issued on 21/07/2025 dismissing the Objector's Application dated 20/05/2025.iv.That in consequence of the above, this Honourable Court be pleased to issue an order reinstating for hearing and determination the Applicant's Notice of Motion Application dated 20/05/2025 (the "Objection Application").v.That the costs of this Application be provided for. 2.The Application is supported by the Supporting Affidavit sworn by Hiram Nyaburi, an Advocate of the High Court of Kenya. 3.He deposes that he was instructed on 19/05/2025 to initiate objection proceedings to safeguard the Applicant's interests in properties belonging to the 1st Defendant that were facing an imminent auction. Consequently, he filed a Notice of Motion Application dated 20/05/2025 under a Certificate of Urgency (referred to as the "Objection Application"). Because the Court failed to issue hearing directions, Mr. Nyaburi promptly wrote to the Deputy Registrar on 23/05/2025 to highlight the Applicant’s predicament and request that the matter be placed before the Judge, a copy of which is attached as Annexure "HN-1". Despite follow-ups, no response was received, and the application remained unconsidered. 4.Subsequently, the 1st Defendant filed an application on 1/09/2025 seeking a vacation hearing for the Objection Application, which the Court certified as urgent and set for an inter-partes hearing on 3/11/2025. However, on that scheduled date, the Court informed the holding Counsel that it could not issue directions because the underlying Objection Application had already been dismissed on 21/07/2025. Mr. Nyaburi contends that this dismissal constitutes an error apparent on the face of the record; the Court had actually issued directions on 22/05/2025 attached as Annexure "HN-2" setting down the Plaintiff's application dated 1/10/ 2025 for hearing on 21/07/2025, meaning only the Plaintiff's application could have legally been dismissed on that day. He maintains that dismissing the Objection Application without a hearing violates the principles of natural justice and Article 50(1) of the Constitution, creating a grave risk that the Applicant's rights will be extinguished through an irregular auction unless the dismissal order is set aside and the application is reinstated. 5.In response to the Application by the Objector/Applicant the Plaintiff/Decree-holder in opposition to the application filed grounds of opposition and he raises several grounds, primarily asserting that it constitutes an abuse of the Court process. Substantively, the Plaintiff argues that the underlying warrants of attachment, issued on 21/05/025, legally lapsed on 13/08/2025, leaving no live dispute for adjudication. 6.Furthermore, the Plaintiff contends that the 1st Defendant/Judgment Debtor (Kaluworks Limited) has substantially settled the decretal amount, rendering the objection moot, and that an Objector cannot assert superior title to goods when the Debtor is willing to settle the decree. Procedurally, the Plaintiff points out that the Applicant failed to formally seek a review of the lawful dismissal orders of 21/07/2025, failed to attach copies of those orders as mandatorily required, and offered no explanation for their non-attendance on that date. Finally, the Plaintiff asserts that the Objector is attempting to obstruct justice and relitigate settled matters by seeking to shield property that has already been subject to conclusive judicial determinations; specifically, they argue that two Courts of equal jurisdiction, through Justice L. Onguto (ELC Case No. 937 of 2013 Nairobi) and Lady Justice Kemei, previously ruled that the immovable property belongs to Booth Extrusions Limited, and that attempting to sweep in this property is an impermissible backdoor attempt to overturn a binding Court of Appeal Judgment. 7.On 8/12/2025 the Court directed that the Application be canvassed by way of written submissions and the parties were granted 30 days to file their submissions. The 2nd Respondent never participated in the Application. A scrutiny of the CTS shows that the Objector/Applicant filed their submissions dated 17/02/2026. 8.In summary the Objector/Applicant requests the reinstatement of that objection and a temporary stay of execution against the 1st Defendant’s property. According to the Objector, the dispute arose after the Plaintiff obtained Judgment on 9/04/2024 and issued a Proclamation Notice through Pyramid Auctioneers on 13/05/2025 to auction various assets belonging to the 1st Defendant (Kaluworks Limited). 9.The Applicant contends that these assets do not belong to the Debtor in totum because the Applicant holds a prior legal and equitable interest via an all-asset debenture. Due to a judicial mix-up where the Court issued hearing directions for the Plaintiff's application but inadvertently dismissed the Applicant's unlisted objection on 21/07/2025, the Applicant argues the dismissal was an error apparent on the face of the record rather than a substantive failure to prosecute. 10.Addressing the first issue of stay of execution, the Applicant relies on Order 22, Rules 51 and 52 of the Civil Procedure Rules, 2010, which empower the Court to stay execution upon the filing of a third-party property claim. To support this, he submits and cites Kilimanjaro Construction Limited v Cytonn Investment Partners Three LLP & Another [2026] KEHC 451 (KLR), highlighting that execution must only be levied against a Judgment Debtor and not against the assets of a stranger to the proceedings. 11.The Applicant further establishes that an Objector needs only demonstrate a genuine legal or beneficial interest to succeed, relying on Arun v Sharma Astana Raikundaha T/A Raikundaha & Co Advocates & 4 Others (2014) KEHC 1412 (KLR) and Stephen Kiprotich Koech v Edwin K. Barchilei; Joel Sitienei (Objector) [2019] KEELRC 2572 (KLR), the latter of which reaffirms that an equity of redemption or beneficial interest is fully protected under the rules. The Applicant stresses that failing to grant a stay would irreversibly extinguish their secured proprietary rights before the main objection can be heard. 12.The core legal issues requiring determination in this matter are:i.Whether the Court should set aside its orders of 21/07/2025 dismissing the Objector's application for want of prosecution,ii.Whether that application should be reinstated for a hearing on the merits, andiii.Whether a temporary stay of execution ought to be granted to preserve the substratum of the dispute. 13.In evaluating these issues, the Court must balance the competing interests of the Plaintiff, who insists on reaping the fruits of a Judgment delivered on 9/04/2024 against a Debtor who has supposedly settled the decretal sum, with the proprietary claims of the Objector, who asserts a prior charge via an all-asset debenture. The Plaintiff strongly resist the application and he has raised both technical and substantive defenses, including the argument that the contested warrants of attachment expired on 13/08/2025, that the Applicant failed to attach the formal order sought to be reviewed, and that the application is an underhanded attempt to relitigate land ownership boundaries already settled by Justice Onguto and Lady Justice Kemei. 14.Conversely, the Objector’s pleadings establish that the application was never set down for directions on 21/07/2025, revealing that the Court accidentally dismissed the wrong application during a clear administrative mix-up while attempting to handle the Plaintiff’s own motion. 15.Faced with this procedural impasse, the Court must address the validity of the dismissal order itself, which the Objector correctly identifies as an error apparent on the face of the record. Kenyan jurisprudence establishes that where a Court terminates a matter due to its own administrative oversight or procedural mistake, the order must be vacated to avoid a substantive miscarriage of justice. This principle is anchored on the realization that a party should not be penalized for the mistakes of the Court or its registry, which violates the constitutional guarantees of a fair hearing. In the case of Republic v Gachoka & 2 Others ex parte Standard Limited [2005] 1 KLR 353, the High Court of Kenya addressed this precise dilemma and noted that "a step taken in the administrative process of the Court which has the effect of shutting out a party from being heard on account of an error not of his making, cannot be allowed to stand as it would defeat the ends of justice." Consequently, because the record demonstrates that the Court issued directions on 22nd May 2025 only in respect of the Plaintiff's application, the unlisted Objection Application was outside the scope of the Court’s focus on 21st July 2025, making its dismissal an arbitrary extraction that directly offends the rules of natural justice and Article 50(1) of the Constitution. 16.Regarding the reinstatement of the Objection Application and the prayer for a stay of execution, the Court must look beyond technical issues to ensure that claims to property are determined on their actual merits, provided the delay is not too long. The Plaintiff’s argument that the warrants have already lapsed cannot completely bar the Objector from seeking a determination on whether its all-asset debenture overrides the underlying attachment process, especially when a looming auction threatens to extinguish its secured interests. 17.In evaluating whether to lift the dismissal and safeguard the property, the Court follows the guidelines governing judicial discretion in procedural lapses. As observed by the Kenyan Court of Appeal in Benjoh Amalgamated Limited v Central Bank of Kenya [2014] eKLR,“The Court has residual jurisdiction to review its decisions to ensure that its processes are not used to work an injustice or to perpetrate an error that undermines the core function of adjudication." 18.By applying this threshold, the Court finds that refusing to reinstate the application would create far greater prejudice to a third-party secured creditor than the minor delay caused to the Decree-holder. The Court therefore sets aside the dismissal orders of 21/07/2025, restores the Notice of Motion Application dated 20/05/2025 to the Court diary, and grants a stay of execution in respect of the 1st Defendant’s property to protect the substratum of the objection proceedings until they are determined inter partes, with costs in the cause. 19.Mention for further directions on disposal of the Notice of Motion dated 20/05/2025 shall be on 1/10/2026. DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 13TH DAY OF JULY 2026.................................MOGENI JJUDGEIn the virtual presence of:………………………………………………………. Plaintiff………………………………………………….1st Defendant/Judgment Debtor…………………………………………………2nd Defendant/Judgment Debtor…………………………………………………….. Applicant/ObjectorMr. Melita - Court Assistant...........................MOGENI JJUDGE