[1998] KEHC 259 (KLR)
The court found that the trial magistrate correctly exercised discretion in taxing the appellant's bill of costs at Kshs. 5,000, given that the claimed expenses were disproportionately high compared to the decretal sum of Kshs. 36,844.05. The court emphasized that it is unreasonable and uneconomical for a court...
Source-derived case information.
- Citation
- [1998] KEHC 259 (KLR)
- Parties
- Appellant: M/S Cheptegen Auctioneers; Respondent: Jella Chuma Omari
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 256 of 1993
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed with costs
- Legal Topics
- Taxation of Costs, Execution of Warrants, Court Broker Fees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M/S Cheptegen Auctioneers
Appellant
Jella Chuma Omari
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in taxing the appellant's bill of costs at Kshs. 5,000 instead of the claimed Kshs. 12,150.
- 2 Whether it was reasonable for the court broker to incur expenses significantly exceeding the decretal sum to be recovered.
- 3 Whether the appeal had merit regarding the reinstatement of the appellant's court broker licence.
Ratio Decidendi
The court found that the trial magistrate correctly exercised discretion in taxing the appellant's bill of costs at Kshs. 5,000, given that the claimed expenses were disproportionately high compared to the decretal sum of Kshs. 36,844.05. The court emphasized that it is unreasonable and uneconomical for a court broker to incur expenses nearly four times the amount to be recovered. Allowing such costs would be unjust and contrary to the purpose of execution proceedings, which are not intended to punish judgment debtors. The appeal was therefore dismissed for lack of merit.
Court Disposition
appeal dismissed with costs
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 256 OF 1993
M/S CHEPTEGEN AUCTIONEERS..................................PLAINTIFF
VERSUS
JELLA CHUMA OMARI....................................................DEFENDANT
J U D G M E N T
The appellant herein was a Court Broker detailed to execute warrants of attachment in respect of R.M.C.C. NO. 7866 of 1991 between Aggrey Ochieng & Another -v- Jellah Chuma Omani.
A dispute arose as tot he costs incurred by the court broker and so taxation of his bill of costs was ordered by the court. After the taxation a ruling thereon was delivered on 28th June, 1993. The appellant herein was aggrieved by the said ruling and therefore filed this appeal. The memorandum of appeal on record is dated 21st July, 1993. In his ruling the learned trial magistrate observed that the appellant was asking for Kshs. 12,150/-. After analysing the bill of cost he awarded Kshs. 5,000/-. in arriving at the said sum he gave reasons therefor. Above all he observed in passing that while the decretal sum the appellant was supposed to recover was Kshs. 36,844. 05, he incurred expenses allegedly amounting to Kshs. 122,150/-. He (the learned trial magistrate) stated that, if the court were to grant that amount of money it would amount to a rip-off. I have taken into consideration the submissions of the appellant in this appeal and the reply by the advocate for the respondent. I am with respect, inclined to agree with the learned trial magistrate and adopt the same reasoning.
Any prudent person and moreso a court broker should know that it does not make economic sense to spend about four times above what you are required to recover. Execution of court warrants is not supposed to be punitive to the judgment debtors but are intended to meet the ends of justice. If any court were to agree with the appellant in this case a miscarriage of justice shall result.
The appellant had an option of instituting a civil action against the respondent if he felt he had spent all that money in the curse of execution. he will however be faced with the same questions that the learned trial magistrate asked in his ruling.
As regards re-instatement of his court brokers licence. I believe this is not the right forum and this court is not in a position to address the issue in an appeal of this nature.
On my part, I see no merit in the appeal and order that the same be and is hereby dismissed with costs.
Orders accordingly.
Dated and delivered at Nairobi this 27th day of May, 1998.
A. MBOGHOLI MSAGHA
JUDGE