[2013] KEHC 6240 (KLR)
The court found that the applicants, having been aware that the arbitral award was under challenge in Nairobi HC Misc. Cause No. 195 of 2010, acted prematurely in seeking to adopt the award as a judgment and proceeding to execution. The subsequent successful setting aside of the arbitral award rendered the execution...
Source-derived case information.
- Citation
- [2013] KEHC 6240 (KLR)
- Parties
- Applicant: Violet Merab Song; Applicant: Eugene Harry Songa; Applicant: Eunice Jeanette Songa; Respondent: James Muga Ogoda; Respondent: Emmanuel Ochola Odhiambo; Respondent: Celestine Lusweti Wose
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 227 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Allocation of Auctioneer's Costs After Execution Proceedings Stayed
- Outcome
- application allowed; auctioneer's costs to be paid by applicants/decree-holders; costs of application awarded to auctioneer and respondents against applicants
- Judges
- DW Mbuteti
- Legal Topics
- Arbitral Award Enforcement, Execution of Judgment, Costs Liability, Res Judicata
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Violet Merab Song
Applicant
Eugene Harry Songa
Applicant
Eunice Jeanette Songa
Applicant
James Muga Ogoda
Respondent
Emmanuel Ochola Odhiambo
Respondent
Celestine Lusweti Wose
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Allocation of Auctioneer's Costs After Execution Proceedings Stayed
Legal Issues
- 1 Who should bear the auctioneer's costs incurred during execution of a decree that was stayed and later rendered academic by the setting aside of the arbitral award.
- 2 Whether the application for auctioneer's costs is res judicata.
- 3 Whether the applicants acted improperly by seeking execution before the challenge to the arbitral award was determined.
Ratio Decidendi
The court found that the applicants, having been aware that the arbitral award was under challenge in Nairobi HC Misc. Cause No. 195 of 2010, acted prematurely in seeking to adopt the award as a judgment and proceeding to execution. The subsequent successful setting aside of the arbitral award rendered the execution proceedings academic and unnecessary. Therefore, it would be unjust to require the respondents to bear the auctioneer's costs arising from execution that should not have occurred. The applicants, as decree-holders who initiated the premature execution, are to bear the auctioneer's costs. The court also awarded the costs of the present application to the auctioneer and...
Court Disposition
application allowed; auctioneer's costs to be paid by applicants/decree-holders; costs of application awarded to auctioneer and respondents against applicants
Orders
- The auctioneer's costs herein shall be paid by the applicants/decree-holders.
- The costs of the present application are awarded to the auctioneer and the respondents/judgment-debtors against the applicants/decree-holders.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
MISC APPLICATION NO. 227 OF 2010
IN THE MATTER OF THE ARBITRATIONS ACT 1995
VIOLET MERAB SONG
EUGENE HARRY SONGA
EUNICE JEANETTE SONGA
(claiming as as administrators of the Estate of
DAN OYALO SONGA, Deceased)........................APPLICANTS
VERSUS
JAMES MUGA OGODA
EMMANUEL OCHOLA ODHIAMBO
CELESTINE LUSWETI WOSE
(trading in the name and style of
SONGA OGODA & ASSOCIATES)...................RESPONDENTS
R U L I N G
1. The notice of motion dated 29th March 2012 filed by the Auctioneer raises the issue who, as between the Applicants/Decree-Holders and the Respondents/Judgment-Debtors, should pay the Auctioneer’s costs. Those costs arose out of warrants of attachment in execution of decree. The Auctioneer proclaimed the Respondents’ goods; subsequently the Court stayed the execution upon application by the Respondents.
2. It is common ground that the Auctioneer’s charges ought to be paid. The Applicants argue that the Respondents should pay. On the other hand the Respondents argue that the Applicants should pay.
3. In their replying affidavit filed on 11th May 2012 (sworn by the 3rd Respondent) the Respondents present the following case –
(i) An arbitrator gave the Applicants a huge monetary award against the Respondents.
(ii) The Respondents applied to set aside the award vide Nairobi HC Misc. Cause No. 195 of 2010 and served the Applicants
(iii) While HC Misc. Cause No. 195 of 2010 was pending the Applicants applied vide the present proceedings for the award to be adopted as a judgment of the court. They obtained the order ex parte.
(iv) The Respondents plead that the Applicants obtained the said judgment without disclosing to court that the arbitral award had already been challenged.
(v) The Applicants then proceeded to execution, which the Respondents successfully resisted.
(vi) The Respondents subsequently and successfully prosecuted their application to set aside the arbitral award, thus rendering the proceedings herein “academic and of no consequence whatsoever”.
(vii) The proceedings herein by the Applicants were an endeavor at “sharp” practice which did not succeed, and which should never have been commenced at all.
4. The Applicants did not file any replying affidavit. They filed grounds of opposition dated 26th April 2012. Two grounds are raised thus -
(i) That the Auctioneers application is res judicata.
(ii) That the application as against the Applicants is misconceived “since costs of the attachment (should be realized from the Judgment-Debtors”.
5. In their submissions the learned counsels merely relied upon their respective papers.
6. I am satisfied from the material now before the court that the proceedings instituted by the Applicants for adoption of the arbitral award by the court, and the subsequent execution proceedings, were pre-mature because the Respondents had already challenged the award, a fact that the Applicants were aware of. The Applicants should have waited the conclusion of that challenge which was vide Nairobi HC Misc. Cause No. 195 of 2010. As it happened, upon prosecution of HC Misc. Cause No. 195 of 2010 the proceedings herein, were rendered academic and of no consequence.
7. That being the case, it is only just that the Applicants do bear the costs of execution that should never have been instituted in the first place. It would be patently unjust for the Respondents to be condemned to pay those costs.
8. I therefore find the Auctioneers costs herein should be paid by the Applicants/Decree-Holders. It is so ordered.
9. The costs of the present application are awarded to the Auctioneer and the Respondents/Judgment-Debtors against the Applicants/Decree-Holders.
DATED AND SIGNED AT NAIROBI THIS 17TH DAY OF JULY 2013
H. P. G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 19TH DAY OF JULY 2013