[2023] KEHC 26418 (KLR)
The court found that the 3rd defendant's goods were lawfully attached in execution of warrants issued by the court, and that the court had previously ordered the 3rd defendant to bear the costs of execution. These costs, including auctioneer charges of Kshs. 669,200 and storage charges of Kshs. 2,500 per day, were...
Source-derived case information.
- Citation
- [2023] KEHC 26418 (KLR)
- Parties
- Plaintiff: Rarlon Kenya Construction Materials Ltd; Defendant: Peng Jian Feng; Defendant: Lou Guang Yang; Defendant: Engineering Company Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit E824 of 2021
- Procedural Posture
- Civil Suit / Ruling on Post Judgment Application for Execution Costs
- Outcome
- Application allowed as prayed.
- Judges
- A Mabeya
- Legal Topics
- Execution of Judgments, Auctioneer Costs, Storage Charges, Unopposed Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rarlon Kenya Construction Materials Ltd
Plaintiff
Peng Jian Feng
Defendant
Lou Guang Yang
Defendant
Engineering Company Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Post Judgment Application for Execution Costs
Legal Issues
- 1 Whether the 3rd defendant should be ordered to pay auctioneer and storage charges as incurred in execution of the court's warrants.
- 2 Whether the plaintiff should be permitted to auction or sell the proclaimed goods and recover any shortfall from the 3rd defendant.
Ratio Decidendi
The court found that the 3rd defendant's goods were lawfully attached in execution of warrants issued by the court, and that the court had previously ordered the 3rd defendant to bear the costs of execution. These costs, including auctioneer charges of Kshs. 669,200 and storage charges of Kshs. 2,500 per day, were neither denied nor challenged by the defendants, who failed to respond to the application. The court held that these were lawfully incurred expenses that must be paid by the 3rd defendant. The court also found no reason to deny the plaintiff's request to auction or sell the goods and recover any shortfall from the 3rd defendant. Accordingly, the application was allowed as prayed.
Court Disposition
Application allowed as prayed.
Orders
- The 3rd defendant shall pay auctioneer charges of Kshs. 669,200.
- The 3rd defendant shall pay storage charges of Kshs. 2,500 per day up to the date of collection of the goods.
Full Case Text
Judgment text and source record
29 paragraphs
Rarlon Kenya Construction Materials Ltd v Feng & 2 others (Civil Suit E824 of 2021) [2023] KEHC 26418 (KLR) (Commercial and Tax) (15 December 2023) (Ruling)
Neutral citation: [2023] KEHC 26418 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Commercial Courts)
Commercial and Tax
Civil Suit E824 of 2021
A Mabeya, J
December 15, 2023
Between
Rarlon Kenya Construction Materials Ltd
Plaintiff
and
Peng Jian Feng
1st Defendant
Lou Guang Yang
2nd Defendant
Engineering Company Ltd
3rd Defendant
Ruling
1. This is a ruling on the plaintiff’s application dated 6/10/2023. It was brought under Order 51 Rule 1 and Section 3A of the Civil Procedure Act. It sought orders that the 3rd defendant pay auctioneers. Charges of Kshs. 669,200/= and storage Charges of Kshs. 2500/= per day up to the date the same would be collected.
2. There were other prayers, to wit, to permit the plaintiff to auction or privately sell the goods proclaimed on 2/1/2022. That in case of a shortfall, the 3rd defendant do pay the difference.
3. The Motion was supported by the affidavit of Brenda M. Luvai sworn on 6/10/2023. It was contended that on 21/1/2023 the goods of the 3rd defendant was attached by Betabase Auctioneers in execution of the warrants issued by this court. That the court had ordered that the costs of the auctioneers be borne by the 3rd defendant. That the 3rd defendant had failed to settle those costs. That the value of those goods is Kshs. 303,000/= and they continue to deteriorate. That the auctioneer charges were Kshs. 669,200/=. That it was just for the orders to be granted.
4. The defendants did not file any response to the application. The application was therefore unopposed.
5. I have considered the averments in the supporting affidavit and the submissions of learned counsel dated 6/12/2023. I have also considered the authorities relied thereon.
6. From the record, it is not in dispute that after an interlocutory judgment was entered the goods of the defendants were proclaimed. Although the court did set aside the same, it nevertheless ordered that the costs of the execution be borne by the defendants. That order has neither been set aside nor appealed against. Further, the auctioneer has intimated his costs to be Kshs. 669,200/=. The same has neither been denied nor challenged.
7. There is also a charge for storage of the goods for nearly a year. Those are costs and expenses lawfully incurred. They must be paid.
8. In view of the foregoing, I see no reason why the application should not be granted. Accordingly, I allow the application dated 6/10/2023 as prayed.
It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF DECEMBER, 2023. A. MABEYA, FCI ArbJUDGE