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ELCDismissedNot stated in the judgment (arising from Originating Summons dated 28th November, 2001)

Ngetich v Misik & another; Indomitable Auctioneers (Interested Party) (Enviromental and Land Originating Summons 97 of 2001) [2025] KEELC 3359 (KLR)

Environment and Land Court
24 April 2024
4,063 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Kericho (L. A. Omollo, J) determined the Plaintiff/Applicant's Notice of Motion dated 20th September 2022, brought under the Civil Procedure Act, the Auctioneers Act and the Auctioneers Rules 1997. The Applicant sought a stay of execution pending delivery of the Taxing Master's written reasons for a ruling of 26th July 2022 in which a party-and-party bill of costs was taxed as drawn, and an order setting aside the proclamation and warrants of attachment levied by Indomitable Auctioneers. The underlying adverse-possession suit (Originating Summons dated 28th November 2001) had been dismissed for want of prosecution on 2nd March 2021, and the Defendants thereafter obtained certificates of costs and warrants to execute for costs exceeding Kshs 350,000. The court framed three issues. On stay, it held that although the Taxing Officer had not furnished reasons, the Applicant ought to have filed a reference rather than wait indefinitely; with no reference on file, granting stay would be 'granting orders in a vacuum', relying on Order 42 Rule 6(2), the Advocates Remuneration Order paragraph 11, and authorities including Kipkorir, Titoo & Kiara Advocates and Okoiti v Central Bank of Kenya. On setting aside the attachment, the court found both sets of warrants had lapsed on their return dates, so no valid warrants subsisted and nothing could be set aside. The application was dismissed with costs, costs following the event under Section 27 of the Civil Procedure Act. The interested party filed neither a response nor submissions.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 2.Whether the proclamation and warrants of attachment levied against the Plaintiff/Applicant by M/s Indomitable Auctioneers should be set aside
  3. 3.Who should bear costs of the application

Key legal issues

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01

Stay of execution pending furnishing of taxing officer's reasons

Holding

Stay refused; no reference having been filed, the court would be granting orders in a vacuum

Reasoning

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.

p. 8
02

Setting aside proclamation and warrants of attachment

Holding

The warrants had lapsed; no valid warrants exist, so nothing could be set aside

Reasoning

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.

p. 10
03

Costs of the application

Holding

Costs awarded to the successful Defendants/Respondents

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.The Notice of Motion application dated 20th September, 2022 is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 8

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

p. 10

Costs

Application dismissed with costs to the Defendants/Respondents

Quotable passages

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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.
p. 10Final orders - dismissal
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.
p. 8Stay of execution
A party cannot wait indefinitely for reasons to be furnished.
p. 7Taxing Officer's reasons and references
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.
p. 10Warrants of attachment

Issues in the judgment

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material

Internal date contradiction: ruling reserved on 6 November 2024 and Respondents' submissions filed 22 January 2025, yet the judgment is dated 24 April 2024

minor

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)

minor

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

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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, "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.