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ELCAllowedNotice of Motion dated 25th July 2016 (arising from Malindi ELC Civil Case No. 206 of 2013)· [2017] KEELC 3610 (KLR)

Paulo Tarlazzi (suing through his Attorney and/or Agents) Carla Tarlazzi v Robert Ciavolella [2017] KEELC 3610 (KLR)

High Court of Kenya (not expressly named in the judgment; the underlying suit was filed in the Environment and Land Court, Malindi)
17 February 2017
JOJ. Olola
621 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered auctioned shares transferred to the buyer because the creditor strictly followed execution rules, unlocking payment of the judgment debt.

What this practically means

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Executive summary

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This was an ex-parte Notice of Motion dated 25th July 2016 brought under Regulation 17 of the Auctioneers Rules 1997 (as amended) and Order 22 Rules 66(4) and (5) of the Civil Procedure Rules, in execution proceedings arising from Malindi ELC Civil Case No. 206 of 2013 (Paola Tarlazzi v Robert Ciavolella). In the underlying suit, the judgment creditor had sought a permanent injunction restraining the judgment-debtor from dealing with Villa Numbers 7 and 8 on Portion Number 1371, Malindi, and payment of Euro 130,000 or, alternatively, transfer of the properties. Default judgment was entered on 1st September 2014 after the defendant, though having entered appearance, failed to file a defence; a decree issued on 23rd October 2015. Warrants of attachment and sale issued on 25th May 2016 covering, among other assets, 350 shares held by the judgment-debtor in Melville Limited. The auctioneer, Malindi Auctioneers (through Elizabeth W. Kamau), sold the shares at public auction on 12th July 2016 for Kshs 1,600,000 exclusive of auction expenses, and forwarded the purchase price to the judgment-creditor's advocates pending issuance of a vesting order. The court perused Order 66 Rules 3, 4 and 5 of the Civil Procedure Rules and Regulation 17 of the Auctioneers Rules, was satisfied that the applicant had complied with the rules, and found it just and proper that the shares be transferred to the successful bidder identified in the Certificate of Sale dated 20th July 2016 (Antonio Maffione), to enable the judgment creditor to appropriate the proceeds toward partial satisfaction of the decree. The motion was accordingly allowed as prayed.

Key legal issues

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01

Compliance with execution procedure for sale of attached shares

Holding

The court was satisfied that the auctioneer complied with Order 66 Rules 3, 4 and 5 of the Civil Procedure Rules and Regulation 17 of the Auctioneers Rules 1997, justifying the vesting/transfer of the auctioned shares to the successful bidder.

Reasoning

The shares were attached under warrants of attachment and sale dated 25th May 2016 and sold at public auction on 12th July 2016 for Kshs 1,600,000 exclusive of auction expenses. The purchase price was forwarded to the judgment-creditor's advocates pending a vesting order. A Certificate of Sale dated 20th July 2016 identified the successful bidder. Compliance with the rules having been demonstrated, the court found it just and proper to order transfer so the creditor could appropriate the proceeds toward partial satisfaction of the decree.

p. 2

Legal principles established

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  • Where the judgment creditor has complied with Order 66 Rules 3, 4 and 5 of the Civil Procedure Rules and Regulation 17 of the Auctioneers Rules 1997 after a valid public auction of attached shares, the court will order transfer of the shares to the successful bidder to enable appropriation of the proceeds towards satisfaction of the decree.

Court orders

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  1. 1.The Notice of Motion application dated 25th July 2016 allowed as prayed
  2. 2.Impliedly, execution of the deed of transfer of the 350 shares held by the judgment-debtor in Melville Limited in favour of the successful bidder, Antonio Maffione, and service upon the Company Secretary of Melville Limited to effect changes in the register of members

Authorities

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Legislation

  • Auctioneers RulesRegulation 17 (as amended)
  • Civil Procedure RulesOrder 22 Rules 66(4) & (5); Order 66 Rules 3, 4 and 5
Jurisdiction invoked
Regulation 17 of the Auctioneers Rules 1997 (as amended) and Order 22 Rules 66(4) & (5) of the Civil Procedure Rules

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, "Paulo Tarlazzi (suing through his Attorney and/or Agents) Carla Tarlazzi v Robert Ciavolella [2017] KEELC 3610 (KLR)", Case Analysis (2017). Notice of Motion dated 25th July 2016 (arising from Malindi ELC Civil Case No. 206 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3610/eng@2017-02-17

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