https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8355

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **HCCCOMMISC NO. E302 OF 2025** **TIMOTHY OTIENO AWUOR T/A** **NAIROBI CONNECTION SERVICES AUCTIONEERS...................APPLICANT** **AND** **BYCE BROADCAST & TECHNOLOGIES (K) LIMITED..................CLAIMANT** **VERSUS** **METROPOL CORPORATION LIMITED................................RESPONDENT** **RULING** 1. Before the Court is the Notice of Motion dated 4th December 2025 brought by **Timothy Otieno Awuor t/a Nairobi Connection Services Auctioneers.** The Motion is expressed to be brought under section 3A of the Civil Procedure Act and Rule 9 of the Auctioneers Rules. 2. The Applicant seeks orders authorising the Officer Commanding Capitol Hill Police Station, or any officer under his command, to accompany him and provide security to enable him break into the Respondent's premises, gain access thereto and remove proclaimed goods in execution of a decree issued in favour of the Claimant. 3. The application is supported by the affidavit of **Timothy Otieno Awuor** sworn on 4th December 2025. He depones that he is a licensed auctioneer and that he received warrants of attachment and sale issued pursuant to a decree in favour of the Claimant against the Respondent. He states that he proclaimed the Respondent's goods but was subsequently denied access to the Respondent's premises by its security personnel when he attempted to attach and remove the proclaimed goods. He therefore seeks the assistance of the Court to facilitate execution. 4. The application is opposed through the replying affidavit of **Juliette Jakaila sworn on 27th January 2026**. The Respondent does not dispute the existence of the decree or its obligation to satisfy the same. Its position is that it is undergoing a corporate restructuring process, which has adversely affected its liquidity. The Respondent states that it has already commenced settlement of the decretal sum by instalments and has made payments of **Kshs. 500,000.00** towards liquidation of the debt. It urges the Court to decline the orders sought. 5. The Claimant filed an **affidavit dated 2nd February 2026** sworn by its advocate, **Waguma Christine,** contending that the decree remains unsatisfied, there is no order staying execution, and that the Respondent's opposition is merely intended to delay lawful execution. **Analysis and Determination** 1. Having considered the Motion, affidavits and the material placed before the Court, the issue that falls for determination is whether the application is competently before the Court. 2. The Motion has been instituted by the auctioneer in his own name. The decree sought to be executed is not in favour of the auctioneer. It is in favour of the Claimant. Equally, the Respondent's liability under the decree is owed to the Claimant and not to the auctioneer. 3. An auctioneer executing a court process acts merely as an agent of the decree-holder and an officer of the court engaged in the execution process. His mandate is confined to carrying out lawful instructions issued pursuant to warrants of attachment and sale. He does not thereby become a litigant in the proceedings nor acquire an independent right to institute substantive proceedings in his own name on behalf of the decree-holder. 4. The Advocates Act reserves the conduct of litigation and appearance before courts on behalf of another person to advocates duly admitted to practice. Save where the law expressly permits otherwise, a person who is not an advocate cannot institute proceedings or seek substantive relief on behalf of another person. 5. Section 9 of the Advocates Act (Cap. 16) provides that: “Subject to this Act, no person shall be qualified to act as an advocate unless— * + 1. he has been admitted as an advocate; and 2. his name is for the time being on the Roll; and 3. he has in force a practising certificate.” 1. Further, Section 31(1) of the Act prohibits unqualified persons from acting as advocates and provides that: “Subject to section 83, no unqualified person shall, either directly or indirectly, take instructions or draw or prepare any document or instrument relating to any legal proceedings, or any other document or instrument specified in section 34(1), or act as an advocate, or as such cause any summons or process to issue, or institute, carry on or defend any suit or other proceedings in the name of any other person in any court of civil or criminal jurisdiction.” 1. In the present case, the application seeks substantive judicial orders intended to aid the enforcement of the Claimant's decree. Although the auctioneer may have encountered resistance in the course of execution, the right sought to be vindicated remains that of the decree-holder. 2. Rule 9 of the Auctioneers Act, which the Application purportedly invokes, provides as follows: - **“9. Police assistance** * 1. Where an auctioneer has reasonable cause to believe that— 1. he may have to break the door of any premises where goods may be seized or repossessed; or 2. he may be subject to resistance or intimidation by the debtor or other person; or 3. 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 supported by an affidavit and may be heard *ex parte*. 1. A plain reading of the above provision discloses no legal basis upon which an auctioneer, acting on the instructions of a decree holder or claimant, may institute and prosecute an application for police assistance in his own name. The auctioneer's role is limited to carrying out the instructions of the decree holder, and any application invoking the Court's jurisdiction must be brought by the decree holder, either personally or through a duly qualified advocate. 2. Timothy Otieno Awuor is a licensed auctioneer governed by the Auctioneers Act (No. 5 of 1996). While an auctioneer is an officer of the court for the limited purpose of executing warrants, he is not an Advocate of the High Court of Kenya. By drawing, signing, and filing the Notice of Motion and subsequent legal submissions, the Applicant engaged in unqualified legal practice. 3. In [National Bank of Kenya Ltd v Ayah [2009] KECA 467 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2009/467/eng%402009-12-04), the Court of Appeal emphasized that where the law reserves certain acts to advocates, such acts cannot be undertaken by unqualified persons. 4. Consequently, the Notice of Motion dated 4th December 2025 is incompetent and is hereby struck out. 5. Given that the application was brought in purported furtherance of execution of a valid decree and that the Respondent does not dispute the existence of the decree, I direct that each party shall bear its own costs of the application. 6. Orders accordingly. **DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 4TH DAY OF JUNE 2026** **** **HON. MR. JUSTICE MOSES ADO *Judge of the High Court*** **In the Presence of:** *Moses C/A* *Timothy Otieno (Auctioneer)..………………the Applicant* *N/A…………for the Respondent*