https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10008

Wagendo v Amesnet Enterprises Ltd & 2 others (Civil Appeal E024 of 2020) [2026] KEHC 10008 (KLR) (Commercial and Tax) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10008 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Civil Appeal E024 of 2020 F Gikonyo, J July 9, 2026 Between Susan Wanjiru Wagendo Decree holder and Amesnet Enterprises Limited 1st Judgment debtor James Mwangi Mbugua 2nd Judgment debtor Janet Waithira Macharia 3rd Judgment debtor Ruling Partial satisfaction of decree 1.The decree holder filed the notice of motion dated 25.5.2025 under section 38 (f) of the Civil Procedure Act seeking an order for execution of the decree dated 26.7.2019 by vesting the property known as Plot No. 7914/III/MN Title No. CR 54068 within North of Mombasa Municipality in the decree holder’s or her nominee’s name in partial satisfaction of the decree issued in her favour against the judgment debtors. 2.The application is supported by the grounds on its face and the supporting affidavit sworn by the decree holder, Susan Wanjiru Wagendo, on 25.5.2025. Grounds 3.The grounds are that the judgment debtors have failed to settle the decretal sum despite the decree holder’s numerous efforts to execute. That the subject property is the only known property in the judgment debtors’ names. That numerous attempts to sell the property by public auction have been unsuccessful as no bid matched the reserve price. That the property returned a forced sale value of Kshs. 5,000,000/- as per a valuation report of 13.11.2025 whereas the decretal sum owing is Kshs. 16,000,000/-. 4.The decree holder filed written submissions dated 29.10.2025. 5.There was no response filed by the respondents. When the matter was mentioned on 30.6.2025 and 16.12.2025, there was no appearance by or for the respondents. 6.The decree holder filed return of service on 24.4.2026 as directed by the court on 23.4.2026. 7.In summary, the decree holder submitted that pursuant to section 38 (f) of the Civil Procedure Act, the court has discretion to grant the orders sought. 8.The decree holder relied on Jubilee Allianz General Insurance Kenya Limited v Butiya [2025] KEHC 5170 (KLR) for the proposition that declaratory suits are a mode of execution of decrees and can be placed under section 38 (f). 9.The decree holder also relied on section 3A of the Civil Procedure Act to invoke the court’s inherent power to make such orders as may be necessary to advance justice or prevent abuse of court process. It further cited Kenya Power & Lighting Company Limited v Benzene Holdings Limited t/a Wyco Paints [2016] KECA 73 (KLR) 10.The decree holder cited K. G. Patel & Sons Ltd v John Kabukuru Gituro [2016] KEHC 3247 (KLR) to reinforce the rationale for inherent powers of the court to be that the legislature is incapable of contemplating all possible eventualities which may arise in unforeseen circumstances. It also relied on the decision on the test applicable, that is, whether the inherent powers should be exercised for the ends of justice. 11.The decree holder asserted that she is entitled to the fruits of the judgment. She highlighted that there is no pending appeal or stay. That vesting the property to her is the only just, effective and proportionate way of partially executing the decree. That no prejudice would be occasioned to the respondents if the orders sought are granted. She cited Michael Ntouthi Mitheu v Abraham Kivondo Musau [2021] KEHC 4530 (KLR) on the general rule that the court ought not to deny a successful litigant the fruits of his judgment save in exceptional circumstances. 12.The decree holder added that had the attachment and auction of the subject property succeeded, the property would have been sold and proceeds applied in partial execution of the decree. She mentioned that the transfer of the subject property to her achieves the same practical result. 13.The decree holder concluded by urging the court to grant the prayers in her application as prayed. Analysis and Determination 14.I have considered the application, the supporting affidavit, the submissions and authorities cited. 15.The issue for determination is whether the application is merited. 16.The decree holder exhibited a copy of the judgment dated 30.7.2021, the agreement for sale dated 30.8.2011, the refund agreement dated 5.8.2016, the decree given on 26.7.2019 and issued on 30.9.2019. 17.The decree holder also exhibited the certificate of taxation dated 25.7.2022, the certificate of postal search dated 22.3.2024 in respect of the subject property, letters dated 24.9.2024, valuation report dated 13.11.2024, certificate of title for the subject property. 18.By the judgment dated 30.7.2021, the court upheld the subordinate court’s judgment dated 26.7.2019 in favour of the decree holder against the judgment debtors for Kshs. 6,875,000 together with interest and costs of the suit. It dismissed the judgment debtors’ appeal with costs. 19.The decree given on 26.7.2019 and issued on 30.9.2019 on was for the principal amount of Kshs. 6,875,000, interest thereon at 12 % per annum from 2/11/2016 to 26/7/2019 of Kshs. 2,253,493.15 and costs of Kshs. 338,790/-. 20.The Deputy Registrar issued a certificate of costs dated 25.7.2022 for Kshs. 1,610,945. 21.The certificate of title shows that Amesnet Enterprises Limited is the registered proprietor of the subject property. 22.The certificate of postal search shows that there is an encumbrance on the subject property, being two prohibitory orders issued by the courts in Misc E022 of 2020 and HCCA E024 of 2020 on 24.9.2020 and 4.3.2024. 23.In the letter dated 24.9.2024, Sure Auctioneers, notified Mbugua Ng’ang’a Advocates that they conducted the public auction as scheduled and ordered by the court on 20.9.2024 but did not obtain a committed bidder so the sale was not declared absolute. 24.The valuation report of 13.11.2024 reflects a current market value of Kshs. 6,500,000/- and a forced sale value of Kshs. 5,000,000/-. 25.Section 38 of the Civil Procedure Act states: -“ 38.Powers of court to enforce executionSubject to such conditions and limitations as may be prescribed, the court may, on the application of the decree-holder, order execution of the decree—(a)by delivery of any property specifically decreed;(b)by attachment and sale, or by sale without attachment, of any property;(c)by attachment of debts;(d)by arrest and detention in prison of any person;(e)by appointing a receiver; or(f)in such other manner as the nature of the relief granted may require:...” 26.The court may order execution of a decree by way of attachment of immovable property upon an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such 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. Order 22 Rule 48 27.The court has power to order the sale of immovable property in execution of decrees. Order 22 Rule 68. 28.The court also has power to issue a vesting order in the case of any movable property vesting such property in the purchaser, or as it may direct, and such property shall vest accordingly. Order 22, rule 67 29.Any court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same. Order 22 Rule 55. Such sale shall be by public auction. Order 22 Rule 56. 30.A decree holder is prohibited from bidding for or buying the property without the court’s permission. Order 22 Rule 61 (1) 31.Where a decree-holder purchases with such permission, the purchase money and the amount due on the decree may, subject to section 50 of the Act, be set off against one another, and the court executing the decree shall enter up satisfaction of the decree in whole or in part accordingly. Order 22 Rule 61 (2) 32.Where a decree holder purchases the property without permission, the court may if it thinks fit, on the application of the judgment-debtor or any other person whose interests are affected by the sale, by order set aside the sale. Order 22 Rule 61 (2). 33.The circumstances of this case are that in exercise of its powers to enforce execution, the court issued prohibitory orders. 34.The decree holder claims that the judgment debtors have failed to settle the decretal sum despite the decree holder’s numerous efforts to execute. That the subject property is the only known property in the judgment debtors’ names. That numerous attempts to sell the property by public auction have been unsuccessful as no bid matched the reserve price. That the property returned a forced sale value of Kshs. 5,000,000/- as per a valuation report of 13.11.2025 whereas the decretal sum owing is Kshs. 16,000,000/-. 35.The decree holder seeks an order vesting the subject property in partial execution of the decree. 36.I am aware that the court may order execution ‘in such other manner as the nature of the relief granted may require’. 37.Thus, in view of the law and circumstances of this case, the nature of the relief granted-prohibitory order- require that the decree-holder be granted permission to bid for or buy the attached property after which a vesting order would issue. As the property is already attached, the decree-holder is hereby granted permission to bid for or buy the attached property in accordance with order 22 rule 62 of the Civil Procedure Rules. 38.The interest of justice so demands. Such order would also be granted on the basis of the inherent jurisdiction of the court. 39.For this reason, the quest for vesting order in the application is deferred. No orders as to costs as there was no response. DATED, SIGNED AND DELIVERED THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 9TH DAY OF JULY, 2026-----------------F. GIKONYO MJUDGEIn the presence of: -Shame for Isahi for applicantNo appearance by respondentCA- Ivan/Aggrey