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ELCPartially AllowedNotices of Motion dated 26th September, 2019 and 22nd September, 2020· [2020] KEELC 287 (KLR)

Kiplagat Kotut v Rose Jebor Kipngok & another [2020] KEELC 287 (KLR)

Environment and Land Court
16 December 2020
1,147 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 allowed property auction to recover awarded costs, rejecting garnishee and salary attachment because a creditor cannot pursue multiple execution methods at once.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (S. M. Kibunja, J) determined two notices of motion by the Plaintiff seeking modes of execution of costs arising from litigation decided in the Plaintiff's favour by the Court of Appeal in Eldoret Civil Appeal No. 31 of 2015 on 7th March 2019, which ordered specific performance of a transfer of L.R. Plateau/Plateau Block 2 (Uasin Gishu) 63 and awarded costs. Two certificates of costs had issued: Kshs.390,425 (Court of Appeal, Eldoret) and Kshs.241,843 (High Court, Eldoret, dated 13th June 2019), totalling Kshs.632,268. The Motion dated 26th September 2019 sought a change of mode of execution from arrest and detention to prison to garnishee attachment of Kshs.695,883 credit balances in the Defendant's Standard Chartered Bank account and attachment of one-third of the Defendant's salary from the Central Bank of Kenya. The Motion dated 22nd September 2020 (amended 6th October 2020) sought sale by public auction or private treaty of Eldoret Municipality/Block 9/281 for Kshs.520,000 plus accrued costs and interest. The court framed three issues: whether a reasonable case for change of mode of execution was laid out, what mode to grant, and costs. It found the applications merited relief but declined to grant all three modes simultaneously as unfair, treating the property sale as the Plaintiff's preferred option. The Defendant having proposed no liquidation plan, the court allowed the 2020 motion: the Defendant was given 30 days to deposit all taxed and accruing costs with the Plaintiff's Counsel, failing which public auction would proceed. The 2019 motion was dismissed with no order as to costs; the Defendant to pay the Plaintiff's costs of the 2020 application.

Key legal issues

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01

Whether to change the mode of execution from arrest and detention to attachment

Holding

The court found the change justified but, rather than grant garnishee and salary attachment, allowed attachment and sale by public auction of Eldoret Municipality/Block 9/281, with a 30-day window for the Defendant to pay the taxed costs in default of which the auction would proceed

Reasoning

The court traced the history: the underlying suit was decided in the Plaintiff's favour by the Court of Appeal on 7th March 2019, with two certificates of costs taxed at Kshs.390,425 and Kshs.241,843. The Defendant proposed no liquidation plan. Given the many prior applications, the court held that auctioning the listed property would raise sufficient funds and settle the matter finally.

p. 2
02

What mode of execution to grant

Holding

Only the public auction of the Defendant's property was granted; the prayers for garnishee attachment of credit balances and attachment of one-third of salary were not granted, as the two prayers were cumulative rather than alternative and granting all three modes simultaneously would be unfair

Reasoning

The court noted the Plaintiff sought both garnishee attachment of Kshs.695,883 in the Standard Chartered Bank account and attachment of one-third of the Defendant's salary, phrased cumulatively, plus sale of the property in the later motion. The court took the later property sale application as the Plaintiff's preferred option and allowed it on conditions.

p. 2
03

Quantum recoverable in execution

Holding

The exact amount due would be ascertained by the Deputy Registrar and the registry when preparing the appropriate documents, since the two applications sought different amounts

Reasoning

The two certificates of costs totalled Kshs.632,268, but the Plaintiff sought Kshs.695,883 in one motion and Kshs.520,000 in the other. The court left ascertainment of the precise decretal amount to the Deputy Registrar and registry at the documentation stage rather than fixing a figure in the ruling.

p. 2

Legal principles established

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  • A judgment creditor is not entitled to simultaneously pursue multiple inconsistent modes of execution; the court will grant only the fair and just mode
  • A judgment debtor who offers no proposal to liquidate costs leaves the court free to order attachment and sale of property to satisfy the decree

Court orders

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  1. 1.The Defendant granted thirty (30) days to deposit all the taxed costs and any other costs that may be certified by the Deputy Registrar to have accrued, with the Plaintiff's Counsel on record
  2. 2.In default, execution in terms of prayer 3 of the Motion dated 22nd September, 2020 as amended on 6th October, 2020 to proceed and the sale be through public auction
  3. 3.The Notice of Motion dated 26th September, 2019 dismissed with no order as to costs
  4. 4.The Defendant to pay the Plaintiff costs of the application dated 22nd September, 2020
Jurisdiction invoked
Execution of decrees emanating from ELC No. 691 of 2012 and Eldoret Court of Appeal Civil Appeal No. 31 of 2015; the court exercised its execution jurisdiction over costs taxed in the cause

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, "Kiplagat Kotut v Rose Jebor Kipngok & another [2020] KEELC 287 (KLR)", Case Analysis (2020). Notices of Motion dated 26th September, 2019 and 22nd September, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/287/eng@2020-12-16

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