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Court of AppealDismissedCivil Appeal 31 of 2002· [2003] KECA 2 (KLR)

Kuronya Auctioneers v Maurice O. Odhoch & 1 other

Court of Appeal of Kenya
9 July 2003
1,741 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Auctioneers who seize the wrong person's property can be sued for damages in Kenya, even when acting on a valid court warrant.

What this practically means

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Executive summary

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Kuronya Auctioneers, instructed by the National Bank of Kenya, levied attachment under warrants issued by the Busia Senior Principal Magistrate's Court in its Civil Case No. 576 of 1994, but attached goods belonging to Maurice Odhoch, a stranger to that decree. Maurice's objection to the attachment under Order XXI rule 53 of the Civil Procedure Rules succeeded on appeal to the High Court. He then sued the auctioneer in the Chief Magistrate's Court at Kisumu for wrongful attachment. The auctioneer raised preliminary objections invoking sections 34 and 7 of the Civil Procedure Act and section 6 of the Judicature Act; the magistrate upheld them without giving reasons. The High Court (Tanui, J) allowed Maurice's appeal and remitted the file to the Kisumu Chief Magistrate's Court for trial, prompting this appeal by the auctioneer. The Court of Appeal (Omolo, Shah and Owuor, JJ A) dismissed the appeal in a single judgment of the court. It held that section 34 of the Civil Procedure Act governs questions arising between parties to the suit in which the decree was passed and does not bar a tort claim by a person who is not the judgment-debtor. It accepted that the High Court erred in applying section 26 of the Auctioneers Act, 1996, which is not retrospective, but held the error immaterial since liability exists at common law. Following Simiyu v Sinino, it held that section 6 of the Judicature Act does not immunise an auctioneer who attaches a wrong party's goods, and that the Busia proceedings, which decided only that the attachment was wrongful, did not render the damages suit res judicata. The appeal was dismissed with costs.

Key legal issues

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01

Scope of section 34 of the Civil Procedure Act as a bar to a separate suit

Holding

Section 34 does not bar Maurice's suit. It covers only questions arising between parties to the suit in which the decree was passed, or their representatives, relating to execution, discharge or satisfaction of the decree, and says nothing about damages payable to a person against whom a decree is executed when he is not the judgment-debtor.

Reasoning

Section 34 confines to the court executing the decree all questions arising between the parties to that suit, or their representatives, relating to execution, discharge or satisfaction of the decree. Maurice was neither a party to the Busia suit in which the Bank obtained its decree against Erastus Mwanga nor the judgment-debtor. His claim is in tort, for compensation for wrongful execution and trespass, and such a claim does not relate to execution, discharge or satisfaction of the decree. The section therefore affords no bar, and the first ground of appeal fails.

p. 2
02

Application of the Auctioneers Act, 1996 to a pre-Act execution

Holding

The High Court erred in applying section 26 of Act No. 5 of 1996 to hold the auctioneer liable, since the Act did not exist when the execution was levied and is not retrospective, but the misdirection did not affect the result because liability exists at common law in any case.

Reasoning

The execution was levied before Act No. 5 of 1996 came into force and that Act is not retrospective in operation, so the Judge misdirected himself in applying section 26 to found liability. Counsel for the auctioneer was right on that point. The Court nonetheless held the misdirection could not affect the result of the appeal, because independently of the statute the auctioneer is liable at common law to the party wronged by the attachment. The ground therefore availed the appellant nothing.

p. 3
03

Whether section 6 of the Judicature Act immunises an auctioneer who attaches a wrong party's goods

Holding

No. Section 6 cannot provide protection to an auctioneer who attaches the goods of a wrong party; such a party has a common law right of recourse against the auctioneer and the decree-holder, and the auctioneer cannot have the suit struck out in limine on the basis of that section.

Reasoning

Section 6 protects a person bound to execute lawful warrants, orders or process from being sued for executing what he would have been bound to execute. Davis & Shirtliff decided only that no action lies against the government for acts done in execution of judicial process or for an auctioneer's defalcations; it did not shield auctioneers generally. Following Simiyu v Sinino, a party who sets execution in motion against a wrong person, even without malice, is liable at common law for trespass and wrongful execution, so section 6 is no basis for striking out the suit.

p. 4
04

Res judicata under section 7 of the Civil Procedure Act

Holding

The Busia suit and Maurice's appeal decided only that the attachment of his goods was wrongful; they did not decide the auctioneer's liability in damages or the quantum payable, so those issues cannot be res judicata and remain for the Chief Magistrate at Kisumu.

Reasoning

The Busia proceedings and the appeal from the dismissal of Maurice's objection established only that the attachment of his goods was wrongful. Neither the auctioneer's liability in damages nor the quantum of damages was in issue or decided there. Those questions are for the Chief Magistrate's Court at Kisumu, and a prior decision that the attachment was wrongful cannot make them res judicata under section 7 of the Civil Procedure Act.

p. 4

Legal principles established

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  • Section 34 of the Civil Procedure Act does not bar a separate suit for damages for wrongful execution or trespass by a person who is neither a party to the suit in which the decree was passed nor the judgment-debtor.
  • Section 6 of the Judicature Act does not confer immunity on an auctioneer who, though armed with a warrant against a specified party, attaches the goods of a wrong party; the wronged party has a common law recourse against both the auctioneer and the decree-holder.
  • A determination in execution proceedings that an attachment was wrongful does not render a subsequent suit for damages for that wrongful attachment res judicata; liability and quantum remain to be tried.

Court orders

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  1. 1.The appeal is dismissed.
  2. 2.Costs of the appeal awarded against the appellant auctioneer (the appeal was dismissed 'with costs').
  3. 3.The orders of the High Court (Tanui, J) allowing Maurice's appeal and directing that the file be placed before the Kisumu Chief Magistrate's Court for trial and disposal stand, the appeal against them having been dismissed.
On appeal from
High Court of Kenya at Kisumu
H.C.C.A. No. 130 of 2001
Jurisdiction invoked
Not expressly stated in the judgment. The matter reached the Court of Appeal as an appeal from the judgment and order of the High Court of Kenya at Kisumu (Tanui, J) in H.C.C.A. No. 130 of 2001; no constitutional or statutory provision is cited as the source of jurisdiction.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kuronya Auctioneers v Maurice O. Odhoch & 1 other", Case Analysis (2003). Civil Appeal 31 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/2/eng@2003-07-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.