[2025] KEELC 36 (KLR)

Macharia v Mutungi (Being an administrator of the Estate of the Late Maina Koine) (Environment and Land Appeal 6 of 2023) [2025] KEELC 36 (KLR) (16 January 2025) (Ruling)

Neutral citation: [2025] KEELC 36 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment and Land Appeal 6 of 2023

MD Mwangi, J

January 16, 2025

Between

John Macharia

Appellant

and

Margaret Mbatha Mutungi (Being an administrator of the Estate of the Late Maina Koine)

Respondent

Ruling

(In respect of the Notice of Motion dated 18th September 2024 brought under the provisions of Sections 1A, 2B and 63 (C) of the Civil Procedure Act, Order 22 rule 22 and Order 51 of the Civil Procedure Rules) Background. 1. The application herein is by the Appellant which principally seeks for two (2) main orders;a.That the Honourable Court be pleased to recall and set aside the warrants of attachment issued to Upstate Auctioneers for being illegal, unprocedural and unlawful as the same were obtained irregularly and arose from a non-existent decree of this court.b.That without prejudice to prayer 4 (above) this Honourable Court be pleased to declare that the proclamation notice is invalid and illegal for being executed beyond the 18th September 2024.

2. The application is premised on the grounds on the face of it and on the supporting affidavit of John Macharia sworn on 18th September 2024.

3. The Appellant/Applicant alleged that though the Respondent had obtained a certificate of costs arising from the party and party bill of costs taxed on 5th March 2024, the same had not been adopted as a judgment of the court and no decree had been issued subsequently. The Applicant further alleged that the warrants of attachment in this case were issued on 19th July 2024 without any application for execution of a decree. They are therefore irregular and illegal. The auctioneers instructed by the Respondent on the other hand and according to the Applicant, illegally proclaimed his goods on 17th September 2024 despite the amount having been subsequently paid and further on the basis of the defective warrants of attachment.

4. The Applicant asserted that the entire execution process was tainted with illegalities.

5. In response, the Respondent filed the replying affidavit sworn at Nairobi on 25th September 2024. The Respondent deposed that the certificate of taxation in this case was pegged on a party and party bill of costs and unlike an advocate –client bill of costs does not require to be adopted as a judgment of the court. It automatically becomes a court order.

6. In regard to the claim that the Respondent had paid a sum of Kshs. 2,000,000/-, the Respondent asserted that the amount paid was in respect to four (4) different cases, i.e. BPRT 579/2011 that transcended into MCCC E427 of 2024, ELCMisc. E054 of 2023 and ELCA 6 of 2023. The total decretal amount in all the cases is Kshs. 3,636,183. 33. The balance of Kshs. 1,636,183. 33 is in relation to the courts awarded to her in this appeal.

7. The Respondent therefore denies the assertion that the Applicant has fully settled the costs of this appeal. The Respondent affirms that the application herein is but an attempt to deny her the fruits of her judgment.

8. In the cause of the hearing of the application herein the Applicant sought leave to cross-examine the Applicant which leave was granted. The cross-examination proceeded on 30th October 2024.

9. During his cross- examination, the Applicant confirmed the existence of the other cases as brought out by the Respondent in her replying affidavit. He admitted owing some money that was still outstanding. He had allegedly paid a sum of Kshs. 2,272,300/= and was aware there was an outstanding balance. The Applicant asserted that he was willing to pay the balance outstanding.

Court’s directions. 10. The court directed the parties to file written submissions. Both parties complied and the court has had an opportunity to peruse and consider the submissions which now form part of its record.

Issues for determination. 11. Having considered the application, the response by the Respondent herein and the submissions filed, I am of the view that the issues for determination are whether the warrants of attachment issued herein were procedurally issued and whether the warrants of attachment should be recalled and set aside. The other issue is whether the proclamation notice by the auctioneer was invalid and illegal.

Determination. 12. The Applicant’s assertion and submission was that the Respondent was executing a certificate of costs which is not a legal instrument capable of execution unless it is converted into a decree of the court. He relied on the decision in the case of UAP Insurance Co. Ltd –vs- Alfred Mdeizi t/a Pave Auctioneers and ano (Civil Appeal 32 of 2018) (2023) KEHC 22683 (KLR) to support his argument.

13. The Respondent distinguished the decision relied on by the Applicant pointing out that the certificate of costs therein arose from the taxation of an Advocate-client Bill of Costs, whereas the certificate of costs herein was in respect to party and party costs. The Respondent relied on the decision in the case of Nyamira County Government –vs- Local Authorities provident fund (2020) eKLR, where the court was categorical that,“As for his argument that the certificate of costs was not converted into a judgment, it is my finding that the bill of costs being one for party and party need not have been converted in order to be executed.”

14. I fully agree with the Respondent’s submissions. There is no requirement for entry of judgment in respect to party and party costs. Section 51 of the Advocates Act applies only to advocate - client costs. The Applicant’s assertion therefore has no basis in law. That was the only basis upon which the Applicant was challenging the warrants of attachment.

15. Consequently, the court finds and holds that the warrants of attachment issued by this court were procedurally and lawfully issued. There would be no justification therefore to recall and or set aside the warrants of attachment.

16. On the issue whether the proclamation notice was invalid and illegal, it is clear from the Applicant’s own application that at the time of proclamation, on 17th September 2024, the warrants of attachment were still valid. On expiry, the decree holder is at liberty to apply for extension of the warrants for a further period not exceeding 45 days.

17. In a nutshell, as at 17th September 2024, the warrants were valid and the auctioneer acted lawfully in terms of Rule 12 of the Auctioneers Rules. If the warrants expires before full extension, as a consequence of the orders staying execution, the auctioneer is obligated to apply for their extension for a period not exceeding 45 days within which he shall finalize the execution.

18. I do think that the application herein was merely calculated at delaying execution and nothing more. This application has no merits. It is hereby dismissed with costs to the Respondent.It is so ordered.

DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 16TH DAY OF JANUARY 2025. M.D. MWANGIJUDGEIn the virtual presence of:Mr. Karwanda for the ApplicantMr. Ayora for the RespondentM.D. MWANGIJUDGE