BRIEF FACTS
This is a ruling in respect the application dated 10th September, 2024 filed by the 1st Defendant/Applicant which sought the following orders: -
a) Spent.
b) THAT this Honourable court be pleased to order that the purported execution as commenced via the Warrants of Attachment of Movable Property dated 5th September, 2024, The Warrants of Sale dated 5th September, 2024 and the Proclamation of Attachment issued on 6th August, 2024 offends the order of stay of execution granted on 28th July, 2023 for the judgment issued on the 11th July, 2023 by Hon. Justice Ombwayo.
c) THAT the purported execution of judgment and decree as commenced via the Warrants of Attachment of Movable Property dated 5th September, 2024, The Warrants of Sale dated 5th September, 2024 and the Proclamation of Attachment issued on 6th August, 2024 be and is hereby declared unlawful, malicious, null and void on account of the fact that the same was undertaken in contravention of an active order of stay of execution in this matter pending appeal.
d) THAT the Plaintiff/Decree holder be condemned to pay the costs of this application and punitive costs for breach of the court orders issued on 28th July, 2023.
The Application was based on grounds set out and supported by the Affidavit of ISACK OPAR the Applicant’s counsel herein sworn on 10th September, 2024. It was stated that vide this court’s judgment on 11th July, 2023 the Plaintiff/Respondent was awarded Kshs.15,000,000 as compensation for loss of use of the suit property L.R No. 13287/42. He stated that the same resulted from the acquisition of public right of way by the Applicant on the said property.
He stated that the Applicant being dissatisfied with the judgment filed an appeal on 17th July, 2023 together with an application for stay of execution of the judgment. He stated that on 28th July, 2023 the stay was granted on condition that the Applicant deposits half of the decretal sum in an interest-earning account as agreed by parties or in the alternative, execute a bank guarantee of the full sum.
He further stated that on 25th August, 2023, the Applicant executed a bank guarantee through KCB in compliance with the court’s directive. He stated that notwithstanding the stay orders, the Respondent proceeded to file a party and party bill of costs on the said judgment and the Applicant in opposition filed a Preliminary Objection.
It was stated that the taxing master lacked the requisite jurisdiction since there was a stay of execution pending appeal. He further stated that the preliminary objection was dismissed and the bill of costs taxed in the sum of Kshs. 544,267/=. He added that on 6th September, 2024, the Respondent instructed auctioneers to proclaim against the Applicant and warrants of attachment and sale of the Applicant’s properties were issued on 5th September, 2024. He stated that the execution process was premature since the taxed bill of costs emanated from an award that was subject of the appeal upon whose decision the stay hinges.
He also stated that the attached property was state property which would be in the public interest that the court upholds the stay orders pending the hearing and determination of the appeal. He added that the Applicant already deposited a guarantee of Kshs. 15,000,000 in fulfilment of the required conditions to maintain the stay orders.
He stated that unless the court intervenes to stay the intended illegal execution, the Respondent’s auctioneers will cart off the Applicant’s assets as proclaimed resulting in further losses prior to the appeal being addressed. He stated that no prejudice will be suffered by the Respondent if the reliefs sought are granted. In conclusion he urged the court that it would be in the interest of justice that the application be allowed.
Response
The Respondent did not file any response to the application.
Submissions
None of the parties filed submissions.
Analysis and Determination
This court has considered the application and supporting affidavit and is of the view that the main issue for determination is whether the application is merited. It is not in contention that on 28th July, 2023 this court granted stay of execution of the judgment issued on 11th July, 2023 on condition that the Applicant deposits half of the decretal sum in an interest earning account as agreed by parties. This court also gave an alternative that the Applicant executes a bank guarantee of Kshs. 15,000,000.
It is not in contention that the Applicant complied having executed bank guarantee of Kshs. 15,000,000 dated 25th August, 2023 by Kenya Commercial Bank. It is also not in dispute that the taxing master taxed the party and party bill of costs dated 24th July, 2023 in the sum of Kshs. 544,267/=. It is also not in dispute that the Respondent proceeded to obtain warrants of attachment for sale of the Applicant’s movable properties by auction.
It is this court’s view that in as much as taxation process is independent from the execution of the judgment, the purpose of the taxation of the bill of costs is to ascertain the security to be given in an application for stay of execution of the main judgment. In the instant case, the court already stayed execution of the judgment and the Applicant complied with the security condition set by the court by virtue of the executed bank guarantee Kshs. 15,000,000.
It is therefore this courts position that having already considered the issue of stay of execution, the Respondent is not warranted to execute the taxed costs. It is this court’s view that taxation proceedings are distinct from the final taxed amount since the final amount can be equated to the judgment which this court already stayed pending determination of the appeal. I do find that the Respondent’s execution of the taxed party and party bill of costs is therefore unlawful since the appeal is still pending determination. In the upshot of the foregoing is that the application is merited and allowed as prayed with costs to the Applicant. It is so ordered
This is a ruling in respect the application dated 10th September, 2024 filed by the 1st Defendant/Applicant which sought the following orders: -
a) Spent.
b) THAT this Honourable court be pleased to order that the purported execution as commenced via the Warrants of Attachment of Movable Property dated 5th September, 2024, The Warrants of Sale dated 5th September, 2024 and the Proclamation of Attachment issued on 6th August, 2024 offends the order of stay of execution granted on 28th July, 2023 for the judgment issued on the 11th July, 2023 by Hon. Justice Ombwayo.
c) THAT the purported execution of judgment and decree as commenced via the Warrants of Attachment of Movable Property dated 5th September, 2024, The Warrants of Sale dated 5th September, 2024 and the Proclamation of Attachment issued on 6th August, 2024 be and is hereby declared unlawful, malicious, null and void on account of the fact that the same was undertaken in contravention of an active order of stay of execution in this matter pending appeal.
d) THAT the Plaintiff/Decree holder be condemned to pay the costs of this application and punitive costs for breach of the court orders issued on 28th July, 2023.
The Application was based on grounds set out and supported by the Affidavit of ISACK OPAR the Applicant’s counsel herein sworn on 10th September, 2024. It was stated that vide this court’s judgment on 11th July, 2023 the Plaintiff/Respondent was awarded Kshs.15,000,000 as compensation for loss of use of the suit property L.R No. 13287/42. He stated that the same resulted from the acquisition of public right of way by the Applicant on the said property.
He stated that the Applicant being dissatisfied with the judgment filed an appeal on 17th July, 2023 together with an application for stay of execution of the judgment. He stated that on 28th July, 2023 the stay was granted on condition that the Applicant deposits half of the decretal sum in an interest-earning account as agreed by parties or in the alternative, execute a bank guarantee of the full sum.
He further stated that on 25th August, 2023, the Applicant executed a bank guarantee through KCB in compliance with the court’s directive. He stated that notwithstanding the stay orders, the Respondent proceeded to file a party and party bill of costs on the said judgment and the Applicant in opposition filed a Preliminary Objection.
It was stated that the taxing master lacked the requisite jurisdiction since there was a stay of execution pending appeal. He further stated that the preliminary objection was dismissed and the bill of costs taxed in the sum of Kshs. 544,267/=. He added that on 6th September, 2024, the Respondent instructed auctioneers to proclaim against the Applicant and warrants of attachment and sale of the Applicant’s properties were issued on 5th September, 2024. He stated that the execution process was premature since the taxed bill of costs emanated from an award that was subject of the appeal upon whose decision the stay hinges.
He also stated that the attached property was state property which would be in the public interest that the court upholds the stay orders pending the hearing and determination of the appeal. He added that the Applicant already deposited a guarantee of Kshs. 15,000,000 in fulfilment of the required conditions to maintain the stay orders.
He stated that unless the court intervenes to stay the intended illegal execution, the Respondent’s auctioneers will cart off the Applicant’s assets as proclaimed resulting in further losses prior to the appeal being addressed. He stated that no prejudice will be suffered by the Respondent if the reliefs sought are granted. In conclusion he urged the court that it would be in the interest of justice that the application be allowed.
Response
The Respondent did not file any response to the application.
Submissions
None of the parties filed submissions.
Analysis and Determination
This court has considered the application and supporting affidavit and is of the view that the main issue for determination is whether the application is merited. It is not in contention that on 28th July, 2023 this court granted stay of execution of the judgment issued on 11th July, 2023 on condition that the Applicant deposits half of the decretal sum in an interest earning account as agreed by parties. This court also gave an alternative that the Applicant executes a bank guarantee of Kshs. 15,000,000.
It is not in contention that the Applicant complied having executed bank guarantee of Kshs. 15,000,000 dated 25th August, 2023 by Kenya Commercial Bank. It is also not in dispute that the taxing master taxed the party and party bill of costs dated 24th July, 2023 in the sum of Kshs. 544,267/=. It is also not in dispute that the Respondent proceeded to obtain warrants of attachment for sale of the Applicant’s movable properties by auction.
It is this court’s view that in as much as taxation process is independent from the execution of the judgment, the purpose of the taxation of the bill of costs is to ascertain the security to be given in an application for stay of execution of the main judgment. In the instant case, the court already stayed execution of the judgment and the Applicant complied with the security condition set by the court by virtue of the executed bank guarantee Kshs. 15,000,000.
It is therefore this courts position that having already considered the issue of stay of execution, the Respondent is not warranted to execute the taxed costs. It is this court’s view that taxation proceedings are distinct from the final taxed amount since the final amount can be equated to the judgment which this court already stayed pending determination of the appeal. I do find that the Respondent’s execution of the taxed party and party bill of costs is therefore unlawful since the appeal is still pending determination. In the upshot of the foregoing is that the application is merited and allowed as prayed with costs to the Applicant. It is so ordered