[2025] KEELC 5332 (KLR)
The court found that the applicant's Notice of Motion was fundamentally misdirected because it sought execution against the Defendants, whereas the judgment had condemned the Plaintiffs to pay costs. Furthermore, the affidavit of service showed that the Motion was served on the Defendants instead of the Plaintiffs,...
Source-derived case information.
- Citation
- [2025] KEELC 5332 (KLR)
- Parties
- Plaintiff: Joseph Akhungu Makokha; Plaintiff: Eperim Kizito Makokha; Defendant: Benard Ouma Okelo (Substituted in Place of Mose Morris Pamba (Deceased)); Defendant: Vitalis Barasa Nyamboki; Applicant: Timothy Wanjala Wekesa t/a Timpech Auctioneers
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Case 111 of 2016
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application
- Outcome
- application struck out
- Judges
- BN Olao
- Legal Topics
- Execution of Costs, Service of Process, Striking Out Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Akhungu Makokha
Plaintiff
Eperim Kizito Makokha
Plaintiff
Benard Ouma Okelo (Substituted in Place of Mose Morris Pamba (Deceased))
Defendant
Vitalis Barasa Nyamboki
Defendant
Timothy Wanjala Wekesa t/a Timpech Auctioneers
Applicant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the Notice of Motion was directed to the correct parties for execution of taxed costs.
- 2 Whether service of the Motion was properly effected on the liable parties.
Ratio Decidendi
The court found that the applicant's Notice of Motion was fundamentally misdirected because it sought execution against the Defendants, whereas the judgment had condemned the Plaintiffs to pay costs. Furthermore, the affidavit of service showed that the Motion was served on the Defendants instead of the Plaintiffs, who are the proper parties for execution. As a result, the application was fatally defective and could not be entertained. The court struck out the Motion and directed the applicant to file a proper application against the correct parties and ensure proper service.
Court Disposition
application struck out
Orders
- The Notice of Motion dated 19th March 2025 is struck out.
- The applicant is at liberty to file a proper Motion to be served upon the Plaintiffs.
Full Case Text
Judgment text and source record
26 paragraphs
Makokha & another v Okelo (Substituted in Place of Mose Morris Pamba (Deceased) & another; Wekesa t/a Timpech Auctioneers (Applicant) (Environment and Land Case 111 of 2016) [2025] KEELC 5332 (KLR) (16 July 2025) (Ruling)
Neutral citation: [2025] KEELC 5332 (KLR)
Republic of Kenya
In the Environment and Land Court at Busia
Environment and Land Case 111 of 2016
BN Olao, J
July 16, 2025
Between
Joseph Akhungu Makokha
1st Plaintiff
Eperim Kizito Makokha
2nd Plaintiff
and
Benard Ouma Okelo (Substituted in Place of Mose Morris Pamba (Deceased)
1st Defendant
Vitalis Barasa Nyamboki
2nd Defendant
and
Timothy Wanjala Wekesa t/a Timpech Auctioneers
Applicant
Ruling
1. The Notice of Motion dated 19th March 2025 by Timothy Wanjala Wekesa (the Applicant) came up this morning and upon hearing him virtually, I listed it for ruling on 17th July 2025. He seeks security to enable him attach and sale moveable properties of the Defendants arising out of a taxed Bill of costs.
2. Upon further perusal of the Motion and the annexed affidavits and the judgment delivered by OmolloJ on 27th September 2022, have found that infact it was the Plaintiffs who were condemned to pay the Defendants costs and not the other way round. Therefore, the execution should be as against the Plaintiffs i.e. Joseph Akhungu Makokha and Eperim Kizito Makokha. Yet, from the affidavit of service of Daniel Fwamba Muyekho dated 28th March 2025, it was the Defendants who were served with the Motion and not the Plaintiffs.
3. In the circumstances, the Notice of Motion is directed to the wrong parties. It is hereby struck out. The Applicant to put his house in order and to file a proper Motion to be served upon the Plaintiffs Joseph Akhungu Makokha andEperim Kizito Makokhaand not the Defendants Benard Ouma Okelloand Vitalis Barasa Nyamboki.
4. Orders accordingly.
BOAZ N. OLAOJUDGE16TH JULY 2025RULING DATED, SIGNED AND DELIVERED BY WAY OF ELECTRONIC MAIL ON THIS 16TH DAY OF JULY 2025. BOAZ N. OLAOJUDGE16TH JULY 2025