[2015] KEHC 6448 (KLR)
The court held that since the Applicant's suit was struck out with costs, the Applicant is liable for all costs arising from the execution process, including the auctioneers' expenses. The warrants for attachment and sale were properly issued at the Respondent's request, and their authenticity was not challenged....
Source-derived case information.
- Citation
- [2015] KEHC 6448 (KLR)
- Parties
- Applicant: The Church Commissioners for Kenya (Registered Trustees); Respondent: Albert Ekirapa T/A Kakapel Institute of Information and Communication Technology
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 20 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Entitlement and Liability for Auctioneer Costs After Suit Struck Out
- Outcome
- application allowed; auctioneers entitled to costs; applicant to pay auctioneers' and application costs
- Legal Topics
- Costs Liability, Execution of Judgments, Auctioneer Expenses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Church Commissioners for Kenya (Registered Trustees)
Applicant
Albert Ekirapa T/A Kakapel Institute of Information and Communication Technology
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Entitlement and Liability for Auctioneer Costs After Suit Struck Out
Legal Issues
- 1 Whether the auctioneers are entitled to costs following execution proceedings after the suit was struck out with costs.
- 2 Which party is liable to pay the auctioneers' costs incurred during execution.
Ratio Decidendi
The court held that since the Applicant's suit was struck out with costs, the Applicant is liable for all costs arising from the execution process, including the auctioneers' expenses. The warrants for attachment and sale were properly issued at the Respondent's request, and their authenticity was not challenged. The Applicant, as judgment debtor, cleared the Respondent's claim after proclamation by the auctioneers and even requested the auctioneers to draw their bill of costs. Therefore, the auctioneers are entitled to their costs, which are to be agreed or taxed, and the Applicant is responsible for payment of those costs as well as the costs of the present application for both the...
Court Disposition
application allowed; auctioneers entitled to costs; applicant to pay auctioneers' and application costs
Orders
- Kennedy Shikuku T/A Eshikhoni Auctioneers is entitled to costs to be agreed or taxed.
- The agreed or taxed costs of the auctioneers to be paid by the Applicant/Plaintiff.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENAY AT BUSIA.
ENVIRONMENT AND LAND CASE NO. 20 OF 2012.
THE CHURCH COMMISSIONERS FOR KENYA…………………..………….APPLICANT
VERSUS
ALBERT EKIRAPA T/A KAKAPEL INSTITUTE OF
INFORMATION & COMMUNCATION TECHNOLOGY…………………….RESPONDENT
AND
KENNEDY SHIKUKU T/A ESHIKHONI AUCTIONEERS………………….AUCTIONEERS.
R U L I N G.
The CHURCH COMMISSIONERS OF KENYA (Registered Trustees), hereinafter referred to as the Applicant filed the notice of motion dated 28th November, 2014 seeking directions on whether the auctioneers are entitled to costs and the party to pay such costs if at all. The Application named Albert Ekirapa T/A Kakapel Institute of Information and Communication Technology as the Respondent, and will hereinafter refer to as the Respondent. It also named the auctioneers as Kennedy Shikuku T/A Eshikhoni Auctioneers.
The application is supported by the affidavit of Desmond Mtula sworn on 27th November, 2014.
The Respondent filed a replying affidavit sworn by Joseph Vitalis Juma on 15th December, 2014 while the auctioneers filed theirs sworn by Kennedy Shikuku on 19th January, 2015.
The application was heard on 20th January, 2015 and Mr. D.M. Wanyama and Mr.Wanyama advocates for the Applicant and auctioneers respectively submitted.
I have carefully considered the submissions by both counsel, the contents of the supporting and two replying affidavits and find as follows;-
That the record shows that the Applicant’s suit was struck out with costs on 25th July, 2013. It therefore follows that the Respondent’s/Defendant’s costs was to be paid by the Applicant/Plaintiff herein.
That the warrants for attachment and sale were applied for by the counsel for the Respondent though their letter dated 11th August, 2014 and duly issued on 12th August, 2014.
That Jane Onyapidi, Andrew Juma and Stephen Omanyala, against whom the warrants were issued and proclamation dated 27th August, 2014 done, have to date not raised any objection to the proclamation.
That indeed following the proclamation by the auctioneers, the Applicant cleared the Respondents claim. That the Applicants counsel, by letter dated 5th November, 2014 addressed to Eshikhoni Auctioneers, asked the Auctioneers to ‘’urgently draw your bill of costs to enable us advice our client to settle the same.’’
That the auctioneers have properly issued with the warrants whose authencity has not been challenged. The auctioneers definitely incurred expenses and the judgment debtor who is the Applicant herein is under a duty to pay such expenses.
That flowing from the foregoing and for avoidance of doubts, the court issues the following directions;
That Kennedy Shikuku T/A Eshikhoni Auctioneers is entitled to the costs to be agreed or taxed.
That the agreed or taxed costs of the auctioneers be paid by the Applicant/Plaintiff herein.
The Applicant/Plaintiff to bear the costs of this application for both the Respondent and the Auctioneers.
It is so ordered.
S.M. KIBUNJA
JUDGE,
DATED AND DELIVERED ON 23RD DAY OF FEBRUARY, 2015.
IN THE PRESENCE OF;……………N/A……………………..APPLICANT.
…………… N/A……………………..RESPONDENT
ADVOCATES…M/S. NASIKE WAFULA FOR APPLICANT AND MR. J. V. JUMA FOR RESPONDENT.
JUDGE.