Ruth Wairimu Muigai v Leonard Githaiga Kamau t/a Gituamba Hotel [2020] KEELRC 1596 (KLR)
The bottom line
#A Kenyan court ruled auctioneers cannot attach property over unpaid costs before those costs are formally taxed and certified.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of warrants of attachment issued before taxation of costs
The warrants were unlawful as no bill of costs had been filed, no taxation done and no certificate of costs issued, and no leave for part execution was obtained.
Section 94 of the Civil Procedure Act allows execution before costs are ascertained only where the High Court orders it on good reasons. No bill of costs was presented for taxation, no certificate of costs issued, and the court was never moved for leave to execute as to the decretal sum. The Deputy Registrar could not waive the statutory requirement; court rules permitting such waiver are ultra vires the section.
Effect of the respondent's repeated absence from court
The respondent's non-attendance did not justify circumventing section 94.
While the claimant attended court diligently and the respondent absented itself despite service, the court held that such absence is not a justifiable ground to bypass the statutory requirement of leave before executing a decree as to costs. Statutory procedure cannot be circumvented on the basis of a party's earlier default.
Legal principles established
#- Execution of a decree before costs are ascertained by taxation requires leave of the High Court on good reasons; a Deputy Registrar has no power to waive the requirements of section 94 of the Civil Procedure Act.
Court orders
#- 1.Application dated 15th August, 2019 allowed
- 2.Warrants of attachment issued to M/S Direct O Auctioneers on 5th August, 2019 found irregular, illegal and recalled
- 3.Claimant to meet the costs due to the respondent
- Jurisdiction invoked
- Employment and Labour Relations Court, executing its own decree; section 94 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ruth Wairimu Muigai v Leonard Githaiga Kamau t/a Gituamba Hotel [2020] KEELRC 1596 (KLR)", Case Analysis (2020). Application dated 15th August, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1596/eng@2020-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.