https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6865

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **COMMERCIAL AND TAX DIVISION** **MILIMANI LAW COURTS** **MISC APPL E1251 OF 2020** **PHILIP MUOKA & CO. ADVOCATES ….....….…… ADVOCATE** **VERSUS** **CIVICON LIMITED ………………………..………..…...CLIENT** **RULING** 1. The advocate/ decree holder filed the notice of motion dated 9.10.2025. 2. The application is made under **Order 22 Rule 6 and Rule 18(2) (3) of the Civil Procedure Rules and Section 1A, 1B and 3A of the Civil Procedure Act.** 3. The decree holder seeks the following orders: - 4. **A Prohibitory Order stopping the registration or any further dealings in respect of all that property known as Plot Number 1883/V/MN situated in the City of Mombasa and registered in the names of the Respondent pending further orders of this court.** 5. **The subject property namely Plot Number 1883/V/MN (Certificate of Title Number C.R. 32008) to be advertised and sold by public auction to recover the total outstanding decretal sum of Kshs. 1,650,337.00 together with further accrued interest thereon until payment in full.** 6. **The Respondents be ordered to grant free and unlimited access to the subject property for the purpose of inspection and valuation.** 7. **The court to allocate a convenient date before the Deputy Registrar for the settlement of the terms and conditions of sale of the property.** 8. **Costs of valuation, Auctioneers fees and any other related expenses to be paid from the proceeds of sale herein.** 9. **Costs of this application be borne by the Respondents.** 10. The application is supported by an affidavit sworn by **Phillip J. Muoka** on 10.10.2025 and written submissions of 11.3.2026. 11. The main grounds are that: - 12. **On 11.11.2021, judgment was entered against the respondents for Kshs. 1,650,337.00 together with interest thereon at commercial rates from 23.1.2021 until payment in full and a decree issued on 23.11.2022.** 13. **The judgment debtor has failed to pay the debt and the auctioneers have been unable to recover/ execute the warrants as the judgment debtor has no known attachable items.** 14. **The judgment debtor has taken active steps to evade payment of the judgment debt.** 15. The decree holder cited **sections 38 and 44 (1) of the Civil Procedure Act** on execution against immovable property. It also cited **Order 22 Rule 48 (1) of the Civil Procedure Act** to the effect that attachment of immovable property shall be made by an order prohibiting the judgment debtor from transferring or charging the property. 16. On the legal effect and requirements of a prohibitory order the decree holder relied on 17. **Orege v Gori (Appeal 22 of 2019) [2024] KEELC 1562 (KLR) (18 March 2024) (Ruling)** 18. **Ogembo Ondieki v Samuel Bosire Agnwenyi & 2 others [2020] KEELC 498 (KLR) (25 November 2020)** 19. **Kitulu & 8 others v Ndolo (Environment and Land Case 241 of 2017) 2025 KEELC 8069 (KLR) (20 November 2025) (Ruling) and** 20. **David Oyiare Ntungani v Matuiva Ole Naisuaku Orket [2021] KEELC 3663 (KLR).** **No response** 1. There was no response filed by the client/ judgment debtor despite service evidenced by a return of service sworn by **Phillip J. Muoka** on 10.12.2025. **Analysis and Determination** 1. The issue for determination is whether the application is merited. **Prohibitory order** 1. **Section 68 of the Land Registration Act** provides for the court’s power of the court to inhibit registered dealings. It states that: - ***“68. (1) The court may make an order (hereinafter referred to as an inhibition) inhibiting for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease or charge.*** 1. **Order 40 (1) (b) of the Civil Procedure Rules** states: - ***1. Where in any suit it is proved by affidavit or otherwise—*** ***(b) that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.”*** 1. **Order 22 Rule 48 (1) of the Civil Procedure Rules** provides that: - ***“Where the property to be attached in immovable, the attachment shall be made by an order prohibiting the judgement – debtor from transferring or charging the property in any way, and all persons from taking any benefit from the purported transfer or charge, and the attachment shall be complete and effective upon registration of a copy of the prohibitory order or inhibition against the title to the property.”*** 1. In **Samuel Njeru Daniel v James Njeru Nthiga & 2 others [2017] eKLR** the court observed that: - ***“13. The purpose of such prohibitory or inhibition order is obviously to preserve the property pending completion of the process of execution. Such orders prevent any further dealings with the subject property so that a decree for its attachment or delivery, as the case may be, is not rendered nugatory.”*** 1. The decree holder ought to establish that it has a *prima facie* case with probability of success, irreparable injury that cannot be compensated by damages and that the balance of convenience tilts in their favour. **Giella v Cassman Brown [1973] EA 358** 2. Additionally, that the judgment debtor intends to steal a match on the applicant. **Slok Construction Limited v Beverly Lilonde Holdings Limited; Development Bank of Kenya Limited (Proposed Interested Party) [2025] KEHC 12658 (KLR)** 3. The decree holder exhibited a copy of the decree dated 23.11.2022 to the effect that judgment was entered in its favour for Kshs. 1,650,337 with interest thereon at 14% per annum from 23.1.2021 until payment in full with costs of Kshs. 10,000. 4. The decree holder stated that the judgment debtor is registered as owner of the subject property i.e. Plot Number 1883/V/MN (Certificate of Title Number C.R. 32008). It exhibited a certificate of postal search of 9.10.2025 confirming this. 5. The decree holder also stated that the judgment debtor has taken active steps to evade payment of the judgement debt and that it is apprehensive that the subject property may be transferred or alienated to frustrate the execution of the decree and that this application will be rendered nugatory in such event. 6. The decree holder contended that if the prohibitory order is not granted, it risks being unable to recover the decretal sum as it knows no other assets of the judgment debtor that would sufficiently satisfy the decree. 7. All these points were not contested by the judgment debtor which did not file any response despite service of the application upon it. 8. Therefore, I find that the decree holder has established the requisite conditions for the grant of the orders sought. **Conclusion** 1. In conclusion, I make the following orders: - 2. **A Prohibitory Order stopping the registration or any further dealings in respect of all that property known as Plot Number 1883/V/MN situated in the City of Mombasa and registered in the names of the Respondent pending further orders of this court.** 3. **The judgment debtor shall pay the decree holder the decretal sum within 30 days of today. In default thereof, the attached property namely Plot Number 1883/V/MN situated in the City of Mombasa to be advertised and sold by public auction to recover the total outstanding decretal sum of Kshs. 1,650,337 with interest thereon at 14% per annum from 23.1.2021 until payment in full with costs of Kshs. 10,000.** 4. **The judgment debtor shall grant free and unlimited access to the subject property for the purpose of inspection and valuation.** 5. **The judgment debtor shall grant free and unlimited access to the subject property for the purpose of inspection and valuation.** 6. **The Deputy Registrar shall settle terms and conditions of sale the property.** 7. **Costs of valuation, Auctioneers fees and any other related expenses to be paid from the proceeds of sale herein.** 8. **Costs of the application are awarded to the decree holder.** **Dated, signed and delivered through Microsoft Teams online application this 7th day of May, 2026** **-----------------** **F. Gikonyo M** **Judge** **In the presence of: -** **Njoroge for Advocate/Applicant** **No appearance for Client** **CA-Ivan/Aggrey**