Mbuthia t/a Mbusera Auctioneers v Occidental Insurance Company Ltd (Miscellaneous Civil Application E01109 & E1112 of 2025 (Consolidated)) [2026] KEHC 9687 (KLR) (Civ) (25 June 2026) (Ruling)

Mbuthia t/a Mbusera Auctioneers v Occidental Insurance Company Ltd (Miscellaneous Civil Application E01109 & E1112 of 2025 (Consolidated)) [2026] KEHC 9687 (KLR) (Civ) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9687 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Miscellaneous Civil Application E01109 & E1112 of 2025 (Consolidated) SN Mutuku, J June 25, 2026 IN THE MATTER OF THE WARRANTS OF ATTACHMENT AND SALE AND IN THE MATTER OF THE AUCTIONEERS ACT NO. 5 OF 1996 AND THE AUCTIONEERS RULES 1917 Between Rosemary W Mbuthia T/A Mbusera Auctioneers Applicant and Occidental Insurance Company Limited Respondent Ruling 1.This Ruling relates to the two applications in the matters named above. Both applications are dated 17th April 2026. They were filed by Rosemary W. Mbuthia t/a Mbusera Auctioneers (the auctioneer) seeking police assistance in an execution process of gaining access into the premises occupied by the Respondent in order to remove and attach the proclaimed goods listed in the proclamation for purposes of auctioning the goods to recover the decretal amount totaling Kshs 200,792 in HCCCMISC. No. E1109/25 and Kshs 278,513 in HCCCMISC. No. E1112/25. 2.The Auctioneer is also seeking an order directing the OCS of Gigiri Police Station/Sub County Administration Police or an officer of the rank of an Inspector of Police from the said Police Station to assist the above exercise by maintaining law and order. The Auctioneer also seeks costs of the application. 3.The grounds in support of both applications are similar `that the Auctioneer was issued with warrants of attachment and sale against the Respondent herein on 23rd March 2026; that the Auctioneer proceeded to the premises of the Respondent on the 7th Floor Parklands Road, Nairobi where attachable assets/goods were proclaimed; that on 10th April 2026, the Auctioneer proceeded to the Respondent’s premises with the intention of removing the attached assets/goods but she was denied entry; that on 13th, 14th and 15th April 2026, the Auctioneer went to the same premises to take the proclaimed goods away but was denied entry; that the efforts to execute the judgment and decree against the Respondent has been unsuccessful, hence these applications. Response 4.The applications are opposed by the Respondent through the Replying Affidavit of Michael Shisia, a Legal Officer with the Respondent, sworn on the 25th May 2026. It is the case for the Respondent that both applications are misconceived, misleading, exaggerated and an abuse of the court process and that the applicant has deliberately misrepresented the true factual position to create a false impression that the Respondent has obstructed lawful execution. 5.The Respondent has stated that contrary to the allegations of the applicant, there is no evidence placed before the court to demonstrate that the applicant was unlawfully denied access into the Respondent’s premises given that the applicant managed to proclaim the goods. 6.The Respondent has stated that the Applicant has failed to demonstrate any genuine denial of entry to warrant the orders sought in this application; that the Respondent operates from a secured premises with controlled access owing to the nature of its business and that entry into the building is regulated with the Respondent reserving the right to restrict or deny entry to any person whose conduct may be disruptive, disorderly, intimidating or likely to occasion disturbance to staff, clients and operations. 7.It has been stated that at no point did the Respondent obstruct lawful court process or refused lawful execution. The Respondent has taken issue with the Applicant’s involvement of the police in a purely civil matter and stated that the Applicant has not demonstrated any circumstances warranting invocation of the police assistance under section 24 of the National Police Service Act there being no evidence of violence, breach of peace, threat to security or unlawful obstruction capable of justifying police intervention in this purely civil execution process. 8.The Respondent stated that the orders sought are unnecessary, excessive, intimidating and disproportionate in the circumstances of this matter and that granting the said orders would effectively sanction harassment and intimidation of the Respondent under the guise of execution. Submissions 9.The two applications were argued orally on 4th June 2026. Counsel for the Applicant reiterated the grounds advanced in support of the application and urged the court that the orders sought in the application ought to be granted to enable the auctioneer proceed with the execution. 10.Counsel for the Respondent also reiterated the grounds advanced in the Replying Affidavit in opposition and submitted that the application is based on the Civil Procedure Act and not Rule 9 of the Auctioneers Rules. It was submitted that the applicant has not demonstrated that she was denied access and showed no willingness to engage in any negotiations towards amicably handling this execution process. 11.Counsel indicated that the Respondent is willing to settle this matter and that the Respondent would appreciate if it was given 45 days to process and pay this claim instead of seeking police assistance. Counsel relied on Kamau Mukuha v Ripples Ltd [1993] KLR. 12.In rejoinder, counsel for the Applicant submitted that the application is anchored on Rule 9 of the Auctioneers Rules. She stated that the auctioneer was allowed entry at the time of proclamation but was denied entry to remove the proclaimed goods. She stated that the 45 days sought are excessive and that proposal is not made in good faith. She was however willing to have the Respondent allowed 3 days to settle the decretal amounts. Analysis and determination 13.I have considered the Application and the grounds supporting it. I have noted that contrary to the allegations by the Respondent that the Application is brought under the Civil Procedure Act and not Rule 9 of the Auctioneers Rules, this is not true. The Applicant has based the Application on Rule 9 of the Auctioneers Rules 1997 as well as Section 3A of the Civil Procedure Act. The latter grants this court inherent powers to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. 14.I have read Rule 9 of the Auctioneers Rules. It provides as follows:(1)Where an auctioneer has reasonable cause to believe that—(a)he may have to break the door of any premises where goods may be seized or repossessed; or(b)he may be subject to resistance or intimidation by the debtor or other person; or(c)a breach of the peace is likely as a result of seizure, repossession or attempted seizure or repossession of any property, the auctioneer shall request for police escort from the nearest police station in order to carry out his duties peacefully.(2)An application under this rule shall be by motion by way of a miscellaneous application supporedt by an affidavit and may be heard ex parte. 15.The Applicant has argued that she has met resistance to the entry of the Respondent’s premises for purposes of removing the proclaimed goods for execution. She stated that despite her having been allowed to access the premises and proclaim the goods, she was denied access to remove the goods for purposes of the execution. This did not happen once but on several occasions as stated. 16.On the other hand, the Respondent has argued that the Applicant has not demonstrated that she was denied access to the Respondent’s premises and that the Respondent cannot deny access for purposes of lawful execution of a decree. 17.The Respondent stated that due to the nature of the business the Respondent is engaged in, access to the premises is normally regulated, with the Respondent reserving the right to restrict or deny entry to persons whose conduct is disruptive, disorderly, intimidating or likely to occasion disturbance to staff, clients and operations. I noted that there is no evidence tendered placing the Applicant in any of the categories specified above. 18.In my considered view, there is a probability that the Applicant was denied access to remove the proclaimed goods given the statements of the Respondent through their Legal Officer in his Replying Affidavit. 19.I have also noted that the Respondent has offered an olive branch to the Applicant that this matter can be settled by payment of the decretal sum. The Respondent is however seeking 45 days to do so. The Applicant was amenable to that offer if the settlement could be done within 3 days instead of 45 days. 20.I am of the view that the offer made by the Respondent is reasonable. However, the time proposed by the Applicant of three (3) days is too short to be reasonable given that the Respondent is a company with procedures on decision making and action on those decisions. 21.For the above reasons, while noting that execution is a legal process that should not be curtailed unless there is a court order to that effect, it is my considered view the parties be allowed to pursue settlement as offered by the Respondent. 22.Consequently, I hereby allow the Respondent 45 days to settle the decretal sum in both matters, failing which the Applicant is authorized to proceed to the Respondent’s premises, with the assistance of the police as sought in prayers 2 and 3 of the Application, and remove the proclaimed goods for the purpose of execution of the decree. 23.The Respondent will also bear the costs of this application. 24.These orders apply to both matters, being HCCCMISC./E1109/25 and E1112/25. 25.It is so ordered. DATED, SIGNED AND DELIVERED THIS 25TH JUNE 2026.S. N. MUTUKUJUDGE