Atingo v Borderless Tracking Limited (Cause 713 of 2017) [2024] KEELRC 954 (KLR)
The bottom line
#A Kenyan court ruled that money paid to an auctioneer under a payment deal does not reduce the judgment debt, which must still be paid in instalments.
What this practically means
#Executive summary
#Key legal issues
#Whether the Kshs.120,000/= paid to the auctioneer was part of the decretal sum or auctioneer fees
The payment was of auctioneer charges pursuant to the arrangement made when the Decree-holder indulged the Judgment-debtor; it did not reduce the decretal sum
The court examined the sequence of payments on February 26, 2024: the auctioneer was paid at 5.35 pm and the Decree-holder's counsel was paid Kshs.200,000/= only after 7.10 pm. The supporting affidavit never asserted the auctioneer payment was for transmission to the decree-holder. The auctioneer claimed no fees, suggesting he had been paid pursuant to the agreement. The decree-holder's explanation was therefore more probable.
Whether the judgment-debtor was unaware of the judgment as deposed by its counsel
The judgment-debtor was at all times privy to the proceedings and was represented by counsel during the hearing
The court rejected the claim that the judgment-debtor was unaware of the judgment, noting it tendered evidence at the hearing and was represented, albeit by counsel other than the advocate on record. This undermined the applicant's assertion that mistakes of counsel should not be visited on a litigant.
Legal principles established
#- Where a decree-holder indulges a judgment-debtor with payment by instalments on condition that the judgment-debtor pays auctioneer charges, amounts paid to the auctioneer on that footing are not part of the decretal sum
Court orders
#- 1.The Judgment-debtor shall pay the balance of the decretal sum other than the Kshs.200,000/= already paid to the Decree-holder's counsel, being the sum of Kshs.184,177.56, in 3 monthly instalments effective end of March 2024
- 2.Each party to bear own costs
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act and Order 40 Rules 1, 2, 3 and 4 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Atingo v Borderless Tracking Limited (Cause 713 of 2017) [2024] KEELRC 954 (KLR)", Case Analysis (2024). Cause No 713 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/954/eng@2024-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.