[2019] KEHC 8543 (KLR)
The court found that the execution process was fundamentally flawed for several reasons: (1) a consent order for stay of execution pending appeal was in force and had not been breached, making execution for taxed costs improper; (2) the application for execution was not properly minuted or considered by the trial...
Source-derived case information.
- Citation
- [2019] KEHC 8543 (KLR)
- Parties
- Plaintiff: Daniel Paul Onkangi; Plaintiff: Justus Orare Onsongo; Plaintiff: Elizabeth Gesare Okore; Plaintiff: Wilfred Nyang’au Ogoti; Defendant: Kenya Power & Lighting Co. Ltd
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 23 of 2004
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Execution
- Outcome
- Application to set aside execution allowed; attachment lifted; no order as to costs except decree holders to bear their own costs including auctioneer's costs.
- Judges
- DAS Majanja
- Legal Topics
- Execution of Decrees, Stay of Execution, Consent Orders, Taxed Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Paul Onkangi
Plaintiff
Justus Orare Onsongo
Plaintiff
Elizabeth Gesare Okore
Plaintiff
Wilfred Nyang’au Ogoti
Plaintiff
Kenya Power & Lighting Co. Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Execution
Legal Issues
- 1 Whether execution for taxed costs was proper in light of a subsisting stay of execution order pending appeal.
- 2 Whether the application for execution was properly considered and minuted by the trial court.
- 3 Whether execution could issue more than one year after the decree without notice to show cause under Order 22 rule 18 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the execution process was fundamentally flawed for several reasons: (1) a consent order for stay of execution pending appeal was in force and had not been breached, making execution for taxed costs improper; (2) the application for execution was not properly minuted or considered by the trial court, contrary to procedural requirements; and (3) since the decree was over one year old, execution could not issue without notice to show cause as mandated by Order 22 rule 18 of the Civil Procedure Rules. Consequently, the attachment was declared null and void and was lifted forthwith.
Court Disposition
Application to set aside execution allowed; attachment lifted; no order as to costs except decree holders to bear their own costs including auctioneer's costs.
Orders
- The attachment is declared null and void and is lifted forthwith.
- Each party to bear their own costs, including the decree holders bearing the auctioneer's costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CORAM: D. S. MAJANJA J.
CIVIL SUIT NO. 23 OF 2004
BETWEEN
DANIEL PAUL ONKANGI..............................................1ST PLAINTIFF
JUSTUS ORARE ONSONGO........................................2ND PLAINTIFF
ELIZABETH GESARE OKORE...................................3RD PLAINTIFF
WILFRED NYANG’AU OGOTI....................................4TH PLAINTIFF
AND
KENYA POWER & LIGHTING CO. LTD.......................DEFENDANT
RULING
1. I have considered the application dated 15th March 2019 and I am constrained to set aside the execution process ex debito justiciae for the following reasons.
2. First, the parties entered into a consent dated 17th September 2018 in which they agreed that there shall be an order of stay pending appeal on condition that the sum of Kshs. 2. 5 million is deposited in a joint interest earning account in the names of the advocates for the parties. There is no evidence of default on record.
3. Second and more importantly, the application for execution filed on 19th November 2019 is for taxed costs of Kshs. 292,995/=. There is no basis for executing for taxed costs only in light of the orders of stay pending appeal. Had there been default, execution would be for the entire decretal sum.
4. Third, it is apparent from the record that the application for execution was not minuted and considered by the trial magistrate. An application for execution is like any other application save for the fact that it is prepared in a specific form. It must be minuted in the proceedings and dealt with like any other application by allowing or dismissing it. Had the Deputy Registrar considered this perhaps, the warrants would not have been issued (see Actionrich Investment Company Limited v. Joseph Otieno Onyango & 4 Others [2016] eKLR).
5. Fourth, the decree having been made on 3rd October 2017, was more than one year old. In terms of Order 22 rule 18 of the Civil Procedure Rules, execution could not issue unless a notice to show cause was issued.
6. For the reasons I have set out, the attachment is null and void and it is lifted forthwith. I decline to award costs save that the decree holders shall bear their own costs including costs of the auctioneer.
DATEDand DELIVEREDat KISIIthis 25thday of March 2019.
D.S MAJANJA
JUDGE
Mr. Otieno, Advocate for the applicant.