In re Chris Allan Butende t/a Status Auctioneers (Environment and Land Appeal 32 of 2022) [2024] KEELC 6015 (KLR)
The bottom line
#Kenyan courts will send police to help auctioneers evict judgment debtors who obstruct lawful execution of court orders.
What this practically means
#Executive summary
#Key legal issues
#Whether the break-in and police security orders were merited under Rule 9 of the Auctioneers Rules
The application was merited; the auctioneer was entitled to police assistance to execute the warrants and enforce the eviction
The court noted the judgment of 22nd November 2023 and registered decree in favour of the Decree Holder, the Judgment Debtor's withdrawal of two stay applications, and obstruction of execution efforts. Applying Rule 9, where an auctioneer has reasonable cause to believe resistance, intimidation or breach of the peace is likely, police escort from the nearest station shall be requested, and such an application may be heard ex parte. The court invoked Article 159's substantive justice and the Stephen Maina Kimanga authority to hold that obstruction of lawful process justifies the orders.
Standard for mandatory injunction at interlocutory stage
The higher standard for mandatory injunctions was met on the material before the court
Relying on Locabail International Finance Ltd v Agro-Export, the court acknowledged that mandatory injunctions at interlocutory stage require special circumstances and a higher sense of assurance than prohibitory injunctions. It found that where the party against whom the injunction is sought is prima facie in the wrong, courts act without waiting for full trial. Given the decree, withdrawn stay applications and obstruction, that standard was satisfied.
Costs
No orders as to costs despite the general rule that costs follow the event
The court recited Section 27 of the Civil Procedure Act and the Hussein Janmohamed principle that a successful party ordinarily gets costs, but expressly reserved its discretion and ordered no costs, finding the application had merit 'in entirety without costs'.
Legal principles established
#- Where a party unreasonably and unlawfully obstructs a lawful process, a court will not hesitate to employ lawful state agencies to oversee execution of its orders
- An auctioneer facing resistance or likely breach of the peace may apply ex parte for police escort under Rule 9 of the Auctioneers Rules
Court orders
#- 1.The Notice of Motion application dated 21st March, 2024 be and is hereby found to have merit in entirety without costs
- 2.M/s Status Auctioneers, duly licensed Auctioneer, authorized to break-in and enter Plot No.11616/III/MN situate at Mtwapa and implement and/or enforce a lawful eviction pursuant to the Judgment delivered on 22nd November 2023 and decree issued on 11th December 2023
- 3.The Officer Commanding Station (O.C.S) Mtwapa Police Station and any other Police Officer under his command directed to provide enough security to M/S Status Auctioneers to implement and/or enforce the lawful eviction
- 4.There shall be no orders as to costs
- Jurisdiction invoked
- Rule 9(1) & (2) and Rule 5(b) of the Auctioneers Rules 1997 and the Auctioneers' Amendment Rules, 2009
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Chris Allan Butende t/a Status Auctioneers (Environment and Land Appeal 32 of 2022) [2024] KEELC 6015 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6015/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.