Johana Kiplimo Kosgei v Mini Bakeries (Nairobi) Limited [2016] KEELRC 136 (KLR)
The bottom line
#A Kenyan court cleared an auctioneer of contempt because the court orders reached him only after he had already completed the execution.
What this practically means
#Executive summary
#Key legal issues
#Whether the auctioneer defied the order of 26th September 2016 requiring deposit of monies into court
The auctioneer was not in defiance as the order was served on him only after the execution process had been completed, and benefit of doubt favoured him.
The court found as a fact that the execution process was completed on 6th September 2016 and proceeds paid to the claimant's counsel on 10th September 2016, whereas the orders were served on the auctioneer later, through the respondent's counsel. Since the order reached the auctioneer only after execution was done, he could not be blamed for failing to deposit the decretal amount in court, and the benefit of doubt tilted in his favour.
Whether the auctioneer's conduct in the execution and proclamation process was proper
His evidence was evasive and not thorough, and he was not wholly faultless on the execution of the proclamation, including a double execution on the same day without leave of court, but no fault was ultimately established against him.
The auctioneer was unclear on whether the proclamation was signed, and the proclamation was carried out twice on 24th August 2016 without leave of court. The court found his testimony evasive but noted that no one was able to pin him down, and the court could only discern evasiveness from his demeanour. On the whole, the interrogation concluded with a finding of no fault.
Legal principles established
#- An auctioneer cannot be held liable for non-compliance with a court order where the order was served on him only after the execution process had been completed
Court orders
#- 1.The interrogation and investigation into the auctioneer's conduct is concluded with a finding of no fault on the part of the auctioneer or his firm
- 2.The auctioneer is at liberty to pursue his pending application dated 7th November 2016 to its logical conclusion
- Jurisdiction invoked
- Inherent powers of the court over its own process and officers executing court orders (contempt/compliance interrogation); specific provision not cited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Johana Kiplimo Kosgei v Mini Bakeries (Nairobi) Limited [2016] KEELRC 136 (KLR)", Case Analysis (2016). Consolidated with Cause Nos. 185 of 2015 and 186 of 2015 (consolidated causes; principal cause number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/136/eng@2016-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.