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ELCStruck OutNot stated in judgment (Notice of Motion dated 19th March 2025)· [2025] KEELC 5332 (KLR)

Makokha & another v Okelo (Substituted in Place of Mose Morris Pamba (Deceased) & another; Wekesa t/a Timpech Auctioneers (Applicant) (Environment and Land Case 111 of 2016) [2025] KEELC 5332 (KLR)

Environment and Land Court

16 July 2025

BOBoaz N. Olao

233 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

A Kenyan court struck out an application to seize property because the applicant named the wrong party in his court documents.

What this practically means

Executive summary

This ruling by Boaz N. Olao J of the Environment and Land Court dealt with a Notice of Motion dated 19th March 2025 by Timothy Wanjala Wekesa, the Applicant, seeking security to enable him attach and sell moveable properties of the Defendants, Benard Ouma Okello and Vitalis Barasa Nyamboki, in pursuit of a taxed Bill of costs. On perusal of the Motion, the annexed affidavits and the judgment delivered by Omollo J on 27th September 2022, the court found that it was in fact the Plaintiffs, Joseph Akhungu Makokha and Eperim Kizito Makokha, who had been condemned to pay the Defendants' costs, not the other way round; consequently any execution should issue against the Plaintiffs. The court further noted from the affidavit of service of Daniel Fwamba Muyekho dated 28th March 2025 that it was the Defendants who had been served with the Motion rather than the Plaintiffs. Holding that the Motion was directed at the wrong parties, the court struck it out and directed the Applicant to put his house in order and file a proper Motion to be served upon the Plaintiffs instead of the Defendants. No costs order was made. The ruling was dated, signed and delivered by electronic mail on 16th July 2025.

Key legal issues

Correct party against whom execution may issue

Holding

The court found on perusal of the judgment of Omollo J that it was the Plaintiffs who were condemned to pay the Defendants' costs, so execution should issue against the Plaintiffs and not the Defendants

Reasoning

The court perused the Motion, the annexed affidavits and the judgment of 27th September 2022 and established that the Plaintiffs, not the Defendants, were condemned to pay costs. The affidavit of service showed the Defendants had been served with the Motion, confirming the Motion targeted the wrong parties. The proper course was to strike out the Motion and direct the Applicant to file a proper one against the Plaintiffs.

Legal principles established

Execution arising from a taxed Bill of costs must issue against the party actually condemned to pay costs by the judgment, and a motion naming the wrong party will be struck out

Court orders

1.The Notice of Motion dated 19th March 2025 is struck out for being directed to the wrong parties
2.The Applicant is at liberty to file a proper Motion to be served upon the Plaintiffs Joseph Akhungu Makokha and Eperim Kizito Makokha and not the Defendants

Jurisdiction invoked: Not stated in the judgment; original civil jurisdiction of the Environment and Land Court following a judgment by Omollo J delivered on 27th September 2022

Key timeline

Practical implications

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Cite this brief

Caselaw, "Makokha & another v Okelo (Substituted in Place of Mose Morris Pamba (Deceased) & another; Wekesa t/a Timpech Auctioneers (Applicant) (Environment and Land Case 111 of 2016) [2025] KEELC 5332 (KLR)", Case Analysis (2025). Not stated in judgment (Notice of Motion dated 19th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5332/eng@2025-07-16

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