Maxwell Agutu Maigo v Kenya National Trading Corporation Limited & another [2019] KEELRC 1095 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Irregularity of execution against a judgment debtor who claims the decree was settled
The court found that although the decretal sum was largely paid, payment was made directly to the Claimant without informing the Claimant's Counsel, occasioning the warrants of attachment; no express setting aside of the warrants was ordered, but costs consequences were imposed on the Applicant's side.
The court traced the history: a consent of 2/8/2018 provided for payment of the decretal sum in instalments with costs to be taxed. The Applicant paid by cheques drawn directly to the Claimant from 6/5/2015 to 18/10/2018, without going through the Claimant's Counsel. Only a later cheque of Kshs.118,551 was paid through Counsel. Because Counsel had no information that the decree had been settled, warrants issued on 28/2/2019, proclamation followed on 13/3/2019 and notice of sale on 15/3/2019. The court held the Applicant's own departure from practice caused the execution.
Costs of the aborted execution and of the application
The Auctioneers' costs and costs leading to execution are to be borne personally by the Respondent's (Applicant's) Counsel; the taxed costs of Kshs.237,102 are payable to the Claimant's Counsel by the Respondents less amounts already paid; costs of the application are payable by the Respondent/Applicants.
The court apportioned financial responsibility according to fault: because the mess in execution was occasioned by the Applicant's manner of dealing with the Claimant contrary to practice, the Applicant's Counsel was to personally bear the Auctioneers' costs and other execution costs, and the Applicants were also to pay the costs of the application. The taxed costs already on record were to be paid over, net of prior payments.
Whether the Replying Affidavit sworn by the Claimant's counsel on record should be struck out
The court did not strike out the Replying Affidavit; it proceeded to determine the application on the averments of the parties notwithstanding the objection that counsel could not swear affidavits in contentious matters.
The Applicant objected that the Replying Affidavit deponed by Patrick Waiganjo Wachira offended Rule 9 of the Advocates Practice Rules and Order 19 Rule 3(1) of the Civil Procedure Rules, relying on Amina Adam, Regina Waithira Mwangi and Gerphas Alphonse Odhiambo. The Claimant relied on Kamlesh M.A Pattni. The judgment records no order striking out the affidavit; the court disposed of the application on its merits with costs consequences instead.
Legal principles established
#- Where a judgment debtor settles a decree directly with the claimant, bypassing the claimant's advocate on record, the resulting confusion in execution is attributable to the judgment debtor, who may bear the execution costs personally.
Court orders
#- 1.Taxed costs of Kshs. 237,102 to be paid to the Claimant's Counsel by the Respondents less what has already been paid
- 2.Respondent's Counsel to personally bear the Auctioneers' costs and other costs leading to execution
- 3.Costs of the application to be paid by the Respondent/Applicants
- Jurisdiction invoked
- Sections 3A and 63(c) & (e) of the Civil Procedure Act, Cap 21; Orders 9, 22, 40 and 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maxwell Agutu Maigo v Kenya National Trading Corporation Limited & another [2019] KEELRC 1095 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1095/eng@2019-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.