Sitienei & another v Lang'at t/a Kaloto Auctioneers (Miscellaneous Application E018 of 2022) [2023] KEELRC 2815 (KLR)
The bottom line
#A Kenyan court cancelled a Kshs.1.2 million auctioneer bill, ruling that execution done in breach of a Supreme Court stay order is void and costs fall on the judgment debtor.
What this practically means
#Executive summary
#Key legal issues
#Validity of execution carried out in breach of a Supreme Court stay order
The entire execution process, including the applicants' lawyers' instructions, was null and void as it contravened the Supreme Court stay orders of 1st November 2019
The stay order was in force when the applicants' advocates instructed the respondent to execute on 11th November 2019, and no evidence showed it was set aside or had expired. Courts cannot reward or give effect to process done in breach of a subsisting order of the highest court; such execution is an exercise in futility amounting to nothing.
Whether auctioneer's costs were recoverable from the applicants rather than the judgment debtor
The taxation of the respondent's costs against the applicants was in error and unlawful; absent a court order or undertaking, execution costs are payable by the judgment debtor
Wasilwa J.'s earlier ruling never held that fees were payable by the applicants. No evidence showed the applicants undertook to pay the costs, nor that the respondent exhausted recovery against the University as judgment debtor. The DR therefore had no legal or factual basis to tax the bill against the applicants.
Duty of an auctioneer as an officer of the court
An auctioneer must act in fidelity to the law and seek clarification where court orders are ambiguous or contradictory, and cannot justify blind obedience to instructions
The respondent knew of the stay orders from the parties' correspondence yet proceeded with execution. As an officer of the court and agent of the decree-holder, he ought to have exercised due diligence before engaging in execution that turned out to be null and void.
Legal principles established
#- A court order remains binding and operative unless set aside or reviewed in accordance with the law, regardless of parties' awareness of it
- Costs incurred in execution are costs in the cause payable by the judgment debtor unless otherwise ordered by the court
- An auctioneer as an officer of the court has a duty to seek clarification where orders are contradictory or invalid and must not blindly act on instructions
Court orders
#- 1.The taxing officer's (DR) decision in Nakuru ELRC Misc. Application No. E016 of 2021 taxing the respondent's costs against the applicants at Kshs.1,220,387/= alongside the certificate of costs issued and dated 30th November, 2021 be and is hereby set aside.
- 2.Each party shall bear own costs in this appeal.
- 3.The sum of Kshs.1,000,000/= deposited in court as security by the applicants on 14th June, 2023 shall be refunded and released to the applicants forthwith.
- On appeal from
- Deputy Registrar, ELRC Nakuru (taxation)
- Nakuru ELRC Misc. Application No. E016 of 2021
- Jurisdiction invoked
- Rule 55(5) of the Auctioneers Rules (appeal against taxation of auctioneer's charges to a judge)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sitienei & another v Lang'at t/a Kaloto Auctioneers (Miscellaneous Application E018 of 2022) [2023] KEELRC 2815 (KLR)", Case Analysis (2023). Nakuru ELRC Misc. Application (Chamber Summonses) dated 23rd July 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2815/eng@2023-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.