David Kashonga Pulei v Noah Moneria Ole Kurrarru & 3 others [2020] KEELC 2806 (KLR)
The bottom line
#The Kajiado Environment and Land Court dismissed a vehicle owner's bid to stop or reverse the sale of his car, holding lawful execution cannot be undone by a late stay application.
What this practically means
#Executive summary
#Key legal issues
#Whether a party and party bill of costs was taxed between the parties
Yes - the Taxing Master's ruling of 29th July 2019 confirmed the bill emanated from the instant suit and that service was effected; the taxed costs remain valid as no reference was lodged
The court perused the Taxing Master's ruling which expressly recorded that the party and party bill dated 29th May 2019 was served on the respondents and was before the court for taxation. The plaintiff's contention that his advocates were not served could not be revisited because this was not a reference, and the plaintiff had a remedy under paragraph 11 of the Advocates Remuneration Order which he did not pursue, leaving the taxed costs unchallenged and valid.
Whether the attachment of motor vehicle KCJ 324K was legal
Yes - a decree existed, warrants of attachment and sale were duly extracted, and the proclamation indicated the decretal sum; the attachment followed proper legal process
Judgment had been entered for the 2nd and 3rd Defendants on the counterclaim with a decree extracted, indicating costs to be borne by the plaintiff and 1st defendant equally, so no fresh decree was needed. Warrants of attachment dated 30th August 2019 and warrants of sale dated 16th December 2019 were issued to Siuma Auctioneers, and the proclamation indicated the decretal sum, demonstrating compliance with the legal process for execution.
Whether stay of execution should be granted
No - the application was overtaken by events, substantial loss was not demonstrated and no security was offered
Applying Order 42 Rule 6 and the decision in James Wangalwa & Another v Agnes Naliaka Cheseto, the court held that completion of execution does not in itself amount to substantial loss. The plaintiff failed to demonstrate the substantial loss he would incur, failed to offer security for the taxed costs, and since the attached motor vehicle had already been sold, a stay would serve no useful purpose.
Legal principles established
#- Execution being levied or completed does not of itself amount to substantial loss for purposes of stay under Order 42 Rule 6; the applicant must show other factors rendering execution irreparably harmful and must offer security
Court orders
#- 1.Dismissal of the Plaintiff's Notice of Motion dated 9th December 2019 with costs
- 2.Vacation of the order of stay granted on 15th January, 2020
- Jurisdiction invoked
- Sections 1A, 1B & 3A of the Civil Procedure Act; Order 40 Rules 1 and 2, Order 51 Rule 1, Order 42 Rule 6 of the Civil Procedure Rules; Section 7 of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Kashonga Pulei v Noah Moneria Ole Kurrarru & 3 others [2020] KEELC 2806 (KLR)", Case Analysis (2020). Kajiado ELC Case No. 948 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2806/eng@2020-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.