https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12374

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **HCCA NO. E032 OF 2022** AUKA MAXWELL OTIENO (T/A MODERN SECURITIES)..........................................APPELLANT/APPLICANT VERSUS LUKA NJOROGE NG'ANG'A..............................1ST RESPONDENT SAMWEL MWAURA MAINA..............................2ND RESPONDENT FLORENCE KIBORE MWENDE........................3RD RESPONDENT ALEX NGINGI MWANGI...................................4THRESPONDENT **RULING** 1. Before this Court is the Applicant's Notice of Motion dated 5th February 2026. The Application is brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 22 Rule 22, Order 40 Rules 1 and 2, and Order 51 Rule 1 of the Civil Procedure Rules. 2. The Applicant seeks the following orders; 1. ***Spent.*** 2. ***THAT the firm of Kiplenge, Andama & Makau Advocates be granted leave to come on record for the Appellant/ Applicant in place of Oumo & Co. Advocates.*** 3. ***Spent.*** 4. ***Spent.*** 5. ***Spent.*** 6. ***THAT this Honourable Court be pleased to declare that the seizure and attachment of motor vehicle KCE 423Q was unlawful, irregular and in contravention of Section 44(1)(ii) of the Civil Procedure Act.*** 7. ***THAT the costs of this Application be provided for.*** 3. The background to this Application is that this Honourable Court delivered its judgment on 19th July 2025, wherein judgment was entered in favour of the Respondents. Following the said judgment, the Respondents initiated execution proceedings and obtained Warrants of Attachment dated 24th September 2025 for recovery of the decretal sum in the primary suit. In execution of the said warrants, the Respondents, through Davis Auctioneering Services, attached the Applicant's motor vehicle, namely a Toyota Probox registration number KCE 423Q, on 26th September 2025. 4. The Applicant contends that the said motor vehicle constitutes a critical tool and implement of trade, being the primary operational asset of the Applicant's security business conducted under the name Modern Alarmax Security Holdings Limited. Further, the said motor vehicle is subject to a valid and subsisting financial encumbrance in favour of MOGO Auto Limited, which holds a financier's proprietary interest therein. The Applicant's case is anchored on his Supporting Affidavit sworn on 5th February 2026 and his written submissions dated 21st March 2026. 5. The Applicant is the registered owner and proprietor of motor vehicle registration number KCE 423Q, as evidenced by the NTSA Motor Vehicle Copy of Records (Annexure "AMO-1"). The said motor vehicle is registered as collateral to secure a credit facility from MOGO Auto Limited, which holds a registered charge over the vehicle. The Applicant owns and operates a security firm under the name of Modern Alarmax Security Holdings Limited, as evidenced by the Company Search (Annexure "AMO-2"). The motor vehicle KCE 423Q was at all material times deployed as a patrol vehicle in the Applicant's security firm and constituted a tool of trade essential and necessary for the performance of the said business. The vehicle is used for patrol and surveillance duties, emergency response to alarm activations, and deployment and supervision of security personnel. 6. The Applicant has annexed photographs (Annexure "AMO-4") showing the motor vehicle KCE 423Q branded as a patrol vehicle. The Applicant contends that the attachment and sale of the said motor vehicle would effectively cripple his business operations and deprive him of his means of livelihood, contrary to the statutory exemption accorded to tools and implements of trade within the meaning of Section 44(1)(ii) of the Civil Procedure Act. 7. The Applicant contends that the auctioneer handed over a Warrant of Sale and Attachment, a Warrant of Attachment of Movable Property, a Warrant of Sale of Property in Execution of a Decree for Money, a Notification of Sale of Movable Property, a Notice of Attachment/Proclamation, and a fee note for Kshs. 89,140 all at once rather than in the order required by law. 8. On 2nd February 2026, the Applicant received a message from NTSA notifying him that an application for an alternative transfer of the said motor vehicle KCE 423Q had been initiated at the National Transport and Safety Authority (Annexure "AMO-5").The Applicant contends that the continued detention of the said motor vehicle and the imminent threat of its transfer is occasioning ongoing and substantial prejudice, as the vehicle is integral to the daily operations of his security business. The cumulative disruption to the Applicant's operations, reputation, and means of livelihood arising from the unlawful deprivation of an exempt tool of trade and a charged asset cannot be adequately or sufficiently remedied by an award of damages. 9. The Applicant submits that this Court is not functus officio and retains jurisdiction to entertain the application. The application does not invite this Court to revisit, vary, review, or sit on appeal over its own judgment, but rather raises distinct and ancillary issues arising during the execution process. The Court retains residual jurisdiction to supervise and control its own process, particularly to prevent abuse, illegality, or injustice arising from execution measures. 10. The Applicant submits that the execution process flows directly from the judgment of this Court, and any challenge relating to the propriety, legality, or regularity of that execution process properly falls within the jurisdiction of this Court. The Applicant submits that the delay in bringing the present application is neither inordinate nor inexcusable. The attachment of the motor vehicle did not immediately culminate in its sale or transfer, and the Applicant has all along been engaged in efforts to resolve the matter. The doctrine of laches cannot be invoked to validate or sanitize an unlawful or irregular process. 11. The Applicant submits that Section 44(1)(ii) of the Civil Procedure Act exempts from attachment "tools and implements of trade." The term "tools of trade" ought to be given a purposive and liberal interpretation. The term "person" under Section 44(1) is not limited to natural persons but extends to corporate entities. The motor vehicle is not a luxury or ancillary asset, but an essential operational tool without which the Applicant's security services cannot be effectively rendered. 12. The Applicant relies on the threefold test as set out in **Kenya Commercial Finance Co. Ltd v Afraha Education Society**: Establishment of a prima facie case; Demonstration of irreparable harm; and Where doubt exists, the balance of convenience tilts in favour of the Applicant. 13. On the stay of execution, the Applicant relies on **Federal Commission of Taxation v Myer Emporium Ltd (1986) 160 CLR 220** and ***Kenya Shell Ltd v Benjamin Keruga Kibiru and others (1982-85) 1 KAR 1018.*** 14. The 1st Respondent's case is anchored on the replying affidavit sworn on 25th February 2026 and written submissions dated 4th April 2026. The 1st Respondent contends that the execution process and warrants of attachment emanate from the primary suit Nakuru CMCC No. 6 of 2014, and the instant application ought to have been filed in the said primary suit as the court of first instance. The Respondent further contends that this Court is an appellate court and upon rendering its judgment on appeal on 19th July 2025, became functus officio. 15. The Respondent contends that the Applicant has not denied that he is indebted to the 1st Respondent following the issuance of the judgment. The attachment of the vehicle was only to recover costs of Kshs. 164,350. The Applicant still owes the principal decretal sum of Kshs. 763,530, which is currently a subject of a Notice to Show Cause in the primary suit (Annexure "LNN1"). 16. The Respondent contends that the Applicant has failed to provide proper evidence that the vehicle is a "tool of trade." The photographs attached (Annexure "AMO-4") do not comply with Section 106B of the Evidence Act and ought to be expunged. The Respondent further contends that the security business (Modern Alarmax Security Holdings Limited) is a limited liability company, a distinct legal entity from the Applicant. No resolution or statement from the company's Board of Directors has been provided to confirm the vehicle is solely used by the company. 17. The Respondent relies on ***Master Fabricators Limited v Patrick Omondi Ndonga [2014] eKLR*** for the proposition that Section 44 of the Civil Procedure Act does not apply to corporate bodies. The Respondent also relies on Blackwood Hodge Kenya Ltd v Lead Gasoline Tank Clearing Sam and Chase (K) Ltd where it was held that "Section 44 of the Civil Procedure Act (Cap 21), in which it is provided that the tools and implements of a person for the performance of his trade or profession shall not be liable to attachment or sale, is not intended to protect corporate entities but artisans whose livelihood depends on their workmanship. The word person in that section does not include a corporate body." 18. The Respondent further relies on ***Invesco Assurance Co. Ltd v Kinyanjui Njuguna & Co. Advocates & another [2020] eKLR*** where it was held that the exemption is not meant for the protection of a particular industry but is only meant to protect a particular person's ability to earn livelihood. The Respondent contends that the Applicant has not sufficiently established that without the said motor vehicle his livelihood would be in jeopardy. The Respondent contends that the Applicant cannot raise objections on behalf of the financier (MOGO Auto Limited). Any objection regarding third-party rights can only be raised by the financier itself through formal objection proceedings. No such proceedings have been initiated. The Respondent submits that MOGO Auto Limited has not availed itself to confirm whether or not they are objecting to the execution. 19. The Respondent contends that the Applicant brought this Application five (5) months after the attachment of the motor vehicle, with no explanation for the delay. The Respondent relies on Mbogo ***Gathuku v AG [1983] HCCC 1980*** as cited in ***Dock Workers Union of Kenya v Kenya Ports Authority; Portside Freight Terminals Limited & Another (Interested Parties) [2022] KEHC 12951 (KLR)*** where it was held that "even a delay of a day or two calls for an explanation." 20. The Respondent contends that injunctive orders cannot be issued as no order of stay of execution of judgment/ruling has been sought or issued. The Respondent relies on ***Michael Bartenge v Stephen Bartenge [2007] eKLR*** where it was held that if an order to stop execution was issued in the nature of an injunction, it would effectively be addressed against the court, and the only manner in which courts are stopped from taking steps to execute decrees is through orders for stay of execution. 21. The Respondent contends that the Applicant is seeking equitable remedies while unjustifiably refusing to settle a valid judgment, and has approached the Court with unclean hands. 22. Having carefully considered the material on record, the following issues arise for determination: 1. ***Whether this Court has jurisdiction to entertain the application;*** 2. ***What orders should this court issue?*** 3. ***Who should bear the costs of the application?*** 23. The 1st Respondent has raised the objection that this Court became functus officio after delivering its judgment on 19th July 2025. The doctrine of functus officio is a well-established principle in administrative and procedural law. It is one of the mechanisms by means of which the law gives expression to the principle of finality. Once a decision has been given, it is (subject to any right of appeal) final and conclusive and cannot be revoked or varied by the decision-maker. 24. In **Telkom Kenya Limited v John Ochanda (Suing on his own behalf and on behalf of 996 Former Employees of Telkom Kenya Limited) [2014] eKLR,** the Court of Appeal held: ***"The general rule that a final decision of the court cannot be re-opened derives from the decision of the English Court of Appeal in re St. Nazaire Co., (1879),12 Ch. D. 88.....a court is functus officio when it has performed all duties in a particular case."*** 25. The Applicant argues that the doctrine does not bar a court from addressing ancillary or collateral matters that arise subsequent to the substantive determination of a dispute. I have carefully considered this argument. However, I note that the application is essentially challenging the legality of the execution process arising from the judgment of this Court. While the application may not seek to revisit the substantive issues determined in the judgment, it does seek to interfere with the execution of that judgment. 26. The court which passed the decree is the one with jurisdiction to supervise the execution of that decree. However, this must be understood within the context of the proper forum. I note that the primary suit was filed in the Chief Magistrate's Court at Nakuru (CMCC No. 6 of 2014). The judgment in the primary suit was delivered on 22nd February 2022. This Court's judgment on 19th July 2025 was an appellate judgment upholding the decision of the lower court. 27. The warrants of attachment that are the subject of this application were issued by the Chief Magistrate's Court in execution of the judgment in the primary suit. The Certificate of Costs that is being executed was issued by the Chief Magistrate's Court. The execution process is therefore a process of the lower court, not of this Court. While it is true that the judgment of this Court upheld the lower court's decision, the execution proceedings are proceedings of the lower court. The Applicant's challenge to the execution process ought to have been filed in the lower court, which is the court that issued the warrants and is supervising the execution. 28. The Applicant's argument that the execution process flows from the judgment of this Court is technically correct, but it does not automatically confer jurisdiction on this Court to supervise the execution process of the lower court. The proper forum for challenging the execution process is the court that issued the warrants and is overseeing the execution. 29. I also note that the application seeks a declaration that the seizure and attachment was unlawful. Such a declaration, if granted, would effectively nullify the execution proceedings of the lower court. The lower court is best placed to determine the legality of its own execution process. While this Court retains residual jurisdiction to supervise its own process, I am not persuaded that the Application falls within that residual jurisdiction. The application is not challenging any order of this Court; it is challenging the execution process of the lower court. 30. Furthermore, I note that the Applicant has not demonstrated that the lower court is unable or unwilling to entertain the application. There is no evidence that the Applicant sought relief in the lower court and was denied. In light of the foregoing, I find that this Court does not have jurisdiction to entertain the present application. The proper forum for challenging the execution proceedings is the Chief Magistrate's Court at Nakuru, which issued the warrants and is supervising the execution. 31. Having found that this Court lacks jurisdiction, I need not determine the other issues raised in the application. I find that the application is not properly before this Court. Accordingly, the notice of motion dated 5th February 2026 is struck out with costs to the 1st Respondent. **Dated, signed, and delivered at Nakuru this 29th day of July, 2026** **J. K. SERGON** **JUDGE** **In the presence of**: Rutoh/Jamleck C/A Andama for the Appellant Muriithi for 1st Respondent