[2018] KEELRC 2114 (KLR)
The court found that the proclamation by the auctioneer on 19th August 2016 was premature and irregular because it was carried out before the certificate of costs was properly served on the respondent's counsel and was conducted after 12pm on a Saturday, contrary to legal provisions. Since the respondent paid the...
Source-derived case information.
- Citation
- [2018] KEELRC 2114 (KLR)
- Parties
- Claimant: John Wanjala Wanjama; Respondent: WananDege Co-operative Savings Sacco and Credit Society Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 157 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Liability for Auctioneer's Costs After Execution of Decree
- Outcome
- Application for auctioneer's costs against the respondent dismissed; instructing counsel for the claimant to pay auctioneer's costs.
- Judges
- DO Ogal
- Legal Topics
- Execution of Decree, Auctioneer Costs, Taxation of Costs, Procedural Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Wanjala Wanjama
Claimant
WananDege Co-operative Savings Sacco and Credit Society Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Liability for Auctioneer's Costs After Execution of Decree
Legal Issues
- 1 Who is liable to pay the auctioneer's costs incurred during execution of the decree: the claimant or the respondent.
- 2 Whether the proclamation by the auctioneer was premature and irregular under the law.
Ratio Decidendi
The court found that the proclamation by the auctioneer on 19th August 2016 was premature and irregular because it was carried out before the certificate of costs was properly served on the respondent's counsel and was conducted after 12pm on a Saturday, contrary to legal provisions. Since the respondent paid the costs on the same day it was served with the certificate, the execution was unnecessary and irregular. Therefore, the respondent is not liable for the auctioneer's costs; instead, the instructing counsel for the claimant is responsible for these costs.
Court Disposition
Application for auctioneer's costs against the respondent dismissed; instructing counsel for the claimant to pay auctioneer's costs.
Orders
- The instructing counsel for the claimant is responsible to pay the auctioneer’s costs.
- The respondent is not liable for the auctioneer’s costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO 157 OF 2015
(Before Hon. Lady Justice Maureen Onyango)
JOHN WANJALA WANJAMA......................................CLAIMANT
-VERSUS-
WANANDEGE CO-OPERATIVE SAVINGS SACCO AND
CREDIT SOCIETY LIMITED..................................RESPONDENT
RULING
The case herein was heard ex parte and judgment entered against the respondent in the sum of Kshs.1,417,220 on 25th February 2016. The respondent attempted to set aside the judgment by applications dated 8th March 2016 and 5th May 2016 both of which were dismissed.
The respondent was thus compelled to settle the decretal sum. The claimant’s Party and Party Bill of Costs was subsequently taxed in the sum of Kshs. 408,834 all-inclusive by consent of the parties dated and filed on 18th August 2016.
A Certificate of Taxation was extracted on 17th August 2016 and served upon the respondent’s counsel by email on the same date. A hard copy was served on 22nd August 2016. The claimant’s counsel thereafter instructed Eshikoni Agency Auctioneers to execute for the costs on 19th August 2016 and the auctioneers obtained a warrant of attachment and proclaimed the respondent’s movable property on the same day.
The Auctioneer has filed an application for payment of costs by the respondent. The issue before me for determination is therefore who between the claimant and the respondent should pay the auctioneer’s costs.
It is the respondent’s case that it paid the decretal sum on the very date that it was served with the Bill of Costs, that the proclamation was effected after 12. 00 p.m. on a Saturday contrary to the provisions of the law, that the execution was premature and that the costs should be paid by the instructing claimant’s advocates.
Counsel for the claimant VICTOR ODHIAMBO AYIEKO of Ayieko Kangethe & Company Advocates on record for the claimant however states that the proclamation was procedural as the respondent’s counsel was made aware of the same two days prior to the proclamation.
Determination
It is not in dispute that the certificate of attachment was served on the respondent’s counsel on 2nd August 2016. It is further not in dispute that the proclamation was carried out on 19th August 2016 before the certificate was served upon the respondent’s counsel. It is further not in dispute that the respondent paid the costs on the very date on which the certificate of costs was served upon it.it has also not been disputed that the proclamation was carried out after 12pm on a Saturday in violation of the relevant legal provisions.
For these reason it is obvious that the proclamation on 19th August 2016 was premature and irregular and the respondent is therefore not liable to pay the costs of the auctioneer.
On these grounds I find that the instructing counsel for the claimant is responsible to pay the auctioneer’s costs and order accordingly.
DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 27TH DAY OF APRIL 2018
MAUREEN ONYANGO
JUDGE