Ngetich v Misik & another; Indomitable Auctioneers (Interested Party) (Enviromental and Land Originating Summons 97 of 2001) [2025] KEELC 3359 (KLR)
The bottom line
#A Kericho court refused to stop property attachment because the applicant waited too long to challenge the taxation of costs, confirming delays forfeit protection.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether orders of stay of execution should be granted pending the issuance of the reasons by the Taxing Officer for the ruling delivered on 26th July, 2022
- 2.Whether the proclamation and warrants of attachment levied against the Plaintiff/Applicant by M/s Indomitable Auctioneers should be set aside
- 3.Who should bear costs of the application
Key legal issues
#Stay of execution pending furnishing of taxing officer's reasons
Stay refused; no reference having been filed, the court would be granting orders in a vacuum
Paragraph 11 of the Advocates Remuneration Order obliges a Taxing Officer to furnish reasons on request, but per Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board, total failure to record reasons does not preclude filing a competent reference. Having waited two and a half years without filing a reference, the Applicant could not obtain stay of execution, which under Order 42 Rule 6(2) requires among other things an appeal or intended application as a substratum.
Setting aside proclamation and warrants of attachment
The warrants had lapsed; no valid warrants exist, so nothing could be set aside
Warrants of sale issued on 9th September 2022 and re-issued on 12th July 2023 each carried return dates that lapsed, and the record does not show execution. Consequently, no valid warrants of sale subsist, and the court cannot set aside that which does not exist.
Costs of the application
Costs awarded to the successful Defendants/Respondents
Section 27 of the Civil Procedure Act provides that costs follow the event and a successful party should ordinarily be awarded costs unless the court directs otherwise. The application was dismissed, so the Respondents as successful parties were awarded costs.
Legal principles established
#- A party who seeks reasons from a Taxing Officer cannot wait indefinitely and ought to file a reference notwithstanding the failure to furnish reasons
- Costs follow the event under Section 27 of the Civil Procedure Act
Court orders
#- 1.The Notice of Motion application dated 20th September, 2022 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A & 63(e) of the Civil Procedure Act; Order 49 Rule 5 of the Civil Procedure Rules; Section 23 of the Auctioneers Act
Relief refused
#Stay of execution pending delivery of the Taxing Master's written reasons
No reference was filed despite the lapse of over two and a half years; granting stay absent a reference would be granting orders in a vacuum
Setting aside the proclamation and warrants of attachment
The warrants of sale had lapsed and were no longer valid, so there was nothing to set aside
Costs
Application dismissed with costs to the Defendants/Respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Taking the foregoing into consideration, I find that the Notice of Motion application dated 20th September, 2022 lacks merit and it is hereby dismissed with costs.
In the absence of the filing of a reference, this court cannot make a determination on whether or not orders of stay of execution should be issued. Doing so would be tantamount to granting orders in a vacuum.
A party cannot wait indefinitely for reasons to be furnished.
As things remain, there are no valid warrants of sale of property. I am unable to grant an order setting aside that which does not exist.
Issues in the judgment
#Internal date contradiction: ruling reserved on 6 November 2024 and Respondents' submissions filed 22 January 2025, yet the judgment is dated 24 April 2024
The judgment states no reasons were given for the Taxing Officer's decision, while Respondents' submissions state the decision contained reasons; also conflicting dates of the taxing ruling (26th vs 28th July 2022)
Inconsistency in warrant return date: earlier the warrant issued 9th September 2022 was to be returned by 19th September 2022, later the judgment refers to 19th December 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngetich v Misik & another; Indomitable Auctioneers (Interested Party) (Enviromental and Land Originating Summons 97 of 2001) [2025] KEELC 3359 (KLR)", Case Analysis (2024). Not stated in the judgment (arising from Originating Summons dated 28th November, 2001). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3359/eng@2025-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.