[2023] KEHC 22556 (KLR)
The High Court determined that it lacks jurisdiction to execute a decree issued by the lower court, and that execution proceedings for recovery of damages and costs awarded in the lower court, commenced in the High Court appeal, are irregular. The respondent is only entitled to execute for costs on appeal in the...
Source-derived case information.
- Citation
- [2023] KEHC 22556 (KLR)
- Parties
- Applicant: Daniel Kariuki; Respondent: DN Ogoti
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 123 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Execution Proceedings Post Appeal Dismissal
- Outcome
- Execution proceedings and warrant of arrest set aside; lower court record to be returned for execution; respondent at liberty to execute for taxed costs on appeal.
- Judges
- RE Aburili
- Legal Topics
- Execution of Decrees, Jurisdiction of High Court, Costs on Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Kariuki
Applicant
DN Ogoti
Respondent
Procedural Posture
Civil Appeal / Ruling on Execution Proceedings Post Appeal Dismissal
Legal Issues
- 1 Whether the High Court has jurisdiction to execute a decree issued by the lower court.
- 2 Whether the respondent can combine execution for damages and costs awarded in the lower court with costs on appeal in the High Court appeal file.
Ratio Decidendi
The High Court determined that it lacks jurisdiction to execute a decree issued by the lower court, and that execution proceedings for recovery of damages and costs awarded in the lower court, commenced in the High Court appeal, are irregular. The respondent is only entitled to execute for costs on appeal in the High Court, not to combine the lower court decree and costs on appeal in the same execution process. Consequently, the execution proceedings and warrant of arrest issued against the appellant in the High Court appeal file were set aside and quashed. The lower court record is to be returned to the Magistrate’s court for execution of the decree as appropriate. The respondent remains...
Court Disposition
Execution proceedings and warrant of arrest set aside; lower court record to be returned for execution; respondent at liberty to execute for taxed costs on appeal.
Orders
- Execution proceedings and warrant of arrest issued against Daniel Kariuki on 21st August 2023 are vacated, set aside and quashed.
- Lower court record to be returned to the Magistrate’s court for execution of decree as appropriate.
Full Case Text
Judgment text and source record
22 paragraphs
Kariuki v Ogoti (Civil Appeal 123 of 2018) [2023] KEHC 22556 (KLR) (18 September 2023) (Ruling)
Neutral citation: [2023] KEHC 22556 (KLR)
Republic of Kenya
In the High Court at Kisumu
Civil Appeal 123 of 2018
RE Aburili, J
September 18, 2023
Between
Daniel Kariuki
Applicant
and
DN Ogoti
Respondent
Ruling
1. The Decree which the Respondent is executing is not of this court but of the lower court. This Court has no jurisdiction to execute decree of the lower court. I am aware that the Judgment debtor’s appeal was dismissed with costs on 23rd September 2020 but the Respondent can only assess and execute for costs on appeal and not to combine the decree of the lower court and costs on appeal in this appeal.
2. Accordingly, I find that the execution proceedings commenced in this appeal for recovery of the damages and costs awarded in the lower court are irregular.
3. The said execution proceedings and the warrant of arrest issued against the appellant Daniel Kariuki on 21st August 2023 by the Deputy Registrar are hereby vacated, set aside and quashed.
4. The lower court record to be returned to the Magistrate’s court to enable the execution of decree as appropriate.
5. As the Respondent has since the delivery of Judgment filed a bill of costs which was taxed in 2021 and is at liberty to execute for recovery of the same in this matter; and as the file cannot remain dormant, mention on 24th October 2023 to confirm settlement of the bill of costs as taxed and in default, the Respondent shall be at liberty to apply.
6. Typed Ruling to be supplied to the parties.
7. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 18TH DAY OF SEPTEMBER, 2023R. E. ABURILIJUDGE