[2024] KEELC 6770 (KLR)
The court found that the execution of the decree by way of warrants of attachment and sale before the taxation of costs, and without obtaining leave of court as required by Section 94 of the Civil Procedure Act, was premature and irregular. The decree holders failed to seek or justify the absence of leave, and the...
Source-derived case information.
- Citation
- [2024] KEELC 6770 (KLR)
- Parties
- Plaintiff: Japheth Mbae Rutere & 11 others; Defendant: Reynolds Construction Company (Nig) Ltd
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 28 of 2013
- Procedural Posture
- Stay Application / Ruling on Application to Set Aside Warrants of Attachment and Sale
- Outcome
- Application allowed; warrants of attachment and sale set aside.
- Judges
- CK Nzili
- Legal Topics
- Execution of Decrees, Warrants of Attachment, Leave of Court, Taxation of Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Japheth Mbae Rutere & 11 others
Plaintiff
Reynolds Construction Company (Nig) Ltd
Defendant
Procedural Posture
Stay Application / Ruling on Application to Set Aside Warrants of Attachment and Sale
Legal Issues
- 1 Whether execution of the decree before taxation of costs without leave of court was lawful.
- 2 Whether the warrants of attachment and sale dated 22.8.2024 should be set aside for non-compliance with Section 94 of the Civil Procedure Act.
Ratio Decidendi
The court found that the execution of the decree by way of warrants of attachment and sale before the taxation of costs, and without obtaining leave of court as required by Section 94 of the Civil Procedure Act, was premature and irregular. The decree holders failed to seek or justify the absence of leave, and the decree did not specify the total amount due. The court emphasized that the statutory requirement for leave is mandatory to protect judgment debtors from facing multiple executions and to ensure the proper quantification of sums due. Consequently, the warrants of attachment and sale were set aside and quashed for non-compliance with the law.
Court Disposition
Application allowed; warrants of attachment and sale set aside.
Orders
- The warrants of attachment and sale dated 22.8.2024 are set aside and quashed.
- There will be no order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
Rutere & 11 others v Reynolds Construction Company (NIG) Ltd (Environment & Land Case 28 of 2013) [2024] KEELC 6770 (KLR) (9 October 2024) (Ruling)
Neutral citation: [2024] KEELC 6770 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Environment & Land Case 28 of 2013
CK Nzili, J
October 9, 2024
Between
Japheth Mbae Rutere & 11 others
Plaintiff
and
Reynolds Construction Company (Nig) Ltd
Defendant
Ruling
1. What the court is asked by an application dated 29. 8.2024 is to stay, suspend and or set aside, quash, or annul the warrants of attachment and sale dated 22. 8.2024 for being premature, irregular and unlawful for non-compliance with Section 94 of the Civil Procedure Act.
2. The grounds are set out on the face of the application and in the supporting affidavit of Seline Opiyo, sworn on 29. 8.2024. The main reason is that a decree and a certificate of costs have not been issued following the taxation of costs. From the court record, it appears there is a decree of the court dated 13. 8.2024.
3. The warrants of attachment and sale are dated 22. 8.2024. Section 94 of the Civil Procedure Act provides that the court must grant leave to a decree-holder to execute a decree before costs are taxed. In Bamburi Portland Cement Co. Ltd vs Hussein (1995) LLR 1870 CAK, the court observed that leave is mandatory and can be sought informally at the time of judgment delivery, and if not so, it must be done through a notice of motion served upon the opposite party and hbe eard inter-partes.
4. In Lakeland Motors Ltd vs Harbhajan Singh Sembi (1998) eKLR, the court said that all parties to a decree should be availed an opportunity to be heard before such an order is made. The rationale behind the section, as observed in Mercedes Sanches Rau Tussel vs Samken Ltd & others (2002) eKLR, is that costs may take time to be taxed or agreed upon by the parties and that where there is a known sum in the decree, it may not be prudent to await to execute the decree until costs are taxed.
5. In this application, it is not disputed that the decree holders had not sought leave to execute before costs were taxed.
6. The decree holders have not given any justification why they did not seek leave or why they should be allowed to do so at this stage. The rationale of the leave is also to save the judgment debtor from facing execution twice. There is already a decree which, in my view has not given the total amount to be paid by the judgment debtor in terms of figures. The respondent's counsel conceded this fact.
7. I agree with the applicant that it was premature to purport to execute without leave. The warrants of attachment and sale dated 22. 8.2024 are, as a result of this, set aside and or quashed. There will be no order as to costs.
DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 9TH DAY OF OCTOBER, 2024In presence ofC.A KananuMiss Maina for the plaintiffsOchienge for Mr. Agwara for the defendantsApplicantHON. C K NZILIJUDGE