[2019] KEHC 834 (KLR)
The court held that the plaintiff, as the decree-holder, is entitled to choose the auctioneer to execute the eviction orders, especially where the previously appointed auctioneer failed to act and provided no explanation. The court found no reason to deny the substitution of auctioneers, as this is within the...
Source-derived case information.
- Citation
- [2019] KEHC 834 (KLR)
- Parties
- Plaintiff: John Kiptoros Kilel; Defendant: Omar Juma; Defendant: Sarah Sheikdon; Defendant: Mary Achieng; Defendant: Joshua Langat; Defendant: Nancy Too; Defendant: Ruth Biomdo; Defendant: Agness Wanjiru
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Case 41 of 2008
- Procedural Posture
- Civil Cause / Ruling on Notice of Motion for Substitution of Auctioneer and Related Orders
- Outcome
- Application allowed in part; leave to substitute auctioneer granted; police security order adopted; ordinary costs awarded against Moco Auctioneers.
- Judges
- GMA Dulu
- Legal Topics
- Execution of Eviction Orders, Substitution of Auctioneer, Court Discretion on Execution, Role of Police in Eviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kiptoros Kilel
Plaintiff
Omar Juma
Defendant
Sarah Sheikdon
Defendant
Mary Achieng
Defendant
Joshua Langat
Defendant
Nancy Too
Defendant
Ruth Biomdo
Defendant
Agness Wanjiru
Defendant
Procedural Posture
Civil Cause / Ruling on Notice of Motion for Substitution of Auctioneer and Related Orders
Legal Issues
- 1 Whether the plaintiff should be granted leave to substitute Moco Auctioneers with Jewo Auctioneers to execute eviction orders.
- 2 Whether the OCS Kericho should provide security during the eviction process as previously ordered.
- 3 Whether punitive costs should be awarded against Moco Auctioneers.
Ratio Decidendi
The court held that the plaintiff, as the decree-holder, is entitled to choose the auctioneer to execute the eviction orders, especially where the previously appointed auctioneer failed to act and provided no explanation. The court found no reason to deny the substitution of auctioneers, as this is within the plaintiff's rights and does not prejudice the defendants. Regarding the request for police security, the court noted that similar orders had already been made by Justice GBM Kariuki and, lacking appellate jurisdiction, the court could only adopt those orders rather than vary them. On costs, the court found no basis for punitive costs but awarded ordinary costs of the application...
Court Disposition
Application allowed in part; leave to substitute auctioneer granted; police security order adopted; ordinary costs awarded against Moco Auctioneers.
Orders
- Leave granted to the plaintiff to appoint Jewo Auctioneers in place of Moco Auctioneers to execute eviction orders against the defendants on L.R. Kericho Municipality 631/1673 within Kericho town.
- On request of the plaintiff’s lawyer or the appointed auctioneers, the OCS Kericho will ensure that there is no breach of the peace during eviction.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
CIVIL CAUSE NO.41 OF 2008
JOHN KIPTOROS KILEL.........................................................................PLAINTIFF
VERSUS
OMAR JUMA................................................................................1ST DEFENDANT
SARAH SHEIKDON......................................................................2ND DEFENDANT
MARY ACHIENG..........................................................................3RD DEFENDANT
JOSHUA LANGAT.........................................................................4TH DEFENDANT
NANCY TOO.................................................................................5TH DEFENDANT
RUTH BIOMDO.............................................................................6TH DEFENDANT
AGNESS WANJIRU.......................................................................7TH DEFENDANT
RULING
1. Before me is an application brought by the plaintiff by way of Notice of Motion dated 8th July 2019 filed under section 3 and 3 A of the Civil Procedure Act (cap.21) seeking the following orders-
a) That the court be pleased to grant the plaintiff leave to instruct another auctioneer to wit M/s Jewo Auctioneers in place of Moco Auctioneers to execute eviction orders against the defendants on L.R. Kericho Municipality 631/1673 within Kericho town.
b) That the Officer Commanding Station (OCS), Kericho to provide M/s Jewo Auctioneers with security during the eviction process.
c) Punitive costs of the application and costs be provided for.
2. The application is based on the grounds that M/s Moco Auctioneers had failed to carry out eviction as ordered by the court in 2010 and had not given reasons; that the plaintiff had not taken possession of the land; and lastly that it was in the best interests of justice that the warrant issued to Moco Auctioneers be cancelled and issued to Jewo Auctioneers to execute.
3. The application is supported by an affidavit sworn on 8th July 2019 by the plaintiff John Kiptorus Kilel, which annexed the ruling by Justice GBM Kariuki of 16th November 2010, appointing Moco Auctioneers.
4. On the hearing date which was 7th October 2019 Mr. Miruka appeared for the plaintiff, and nobody appeared for Moco Auctioneers though a hearing notice was said to have been served upon them and an affidavit of service filed. Counsel urged the court to grant the orders sought.
5. Having considered the application, I have no reason to disallow the change of the auctioneers as requested since the auctioneers are a choice of the plaintiff who will pay for their services.
6. With regard to the request for the OCS, Kericho Police Station to provide security during eviction process, I note that Justice GBM Kariuki made specific orders in that regard, and I have not been asked to review the same as an error on the record. Since I do not have jurisdiction to change those court orders on any other reason as I am not the appellate court, I adopt the same orders herein that at the request of the plaintiff’s advocate, and the appointed auctioneer the OCS Kericho will no doubt ensure that there is no breach of peace.
7. As for costs, I will grant the plaintiff ordinary costs of the application against the previous auctioneer Moco Auctioneers, but not punitive costs.
8. Consequently, I order as follows-
a) Leave is hereby granted to the plaintiff to appoint another auctioneer to wit M/s Jewo Auctioneers in place of Moco Auctioneers to execute eviction orders against the defendants on L.R. Kericho Municipality 631/1673 within Kericho town.
b) On request of the plaintiff’s lawyer or the appointed auctioneers, the OCS Kericho will ensure that there is no breach of the peace.
c) The plaintiff is granted the costs of this application against Moco Auctioneers.
Dated and delivered at Kericho this 10th December 2019.
George Dulu
JUDGE