Okuro & 7 others v Onudi (Petition 5 of 2018) [2024] KEELRC 1342 (KLR)
The bottom line
#A Kenyan court scrapped an execution against a man's property because costs were taxed without any court order actually awarding them.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Respondent's Motion for interim stay of execution and instalment payments should be granted
- 2.Whether the taxation of the Petitioners' Bill of Costs and the ensuing execution were founded on any valid order for costs
Key legal issues
#Whether the Deputy Registrar had jurisdiction to tax the Petitioners' Bill of Costs
The Taxing Officer acted without jurisdiction because the Court never awarded costs to the Petitioners; the only costs awarded were those of the appeal by the Court of Appeal.
The Court reviewed its file and confirmed it made no award of costs to the Petitioners in the judgment, nor was there an application for review. Since there was no order granting costs, the taxation had no legal foundation, and execution premised on the resulting certificate of taxation was a nullity and could not stand.
Whether execution commenced more than one year after taxation required leave
The execution, launched more than a year after judgment/taxation, was invalid for want of leave.
The Court noted as an additional ground that the attempt at execution was made more than one year after judgment and/or taxation of costs without securing leave of the Court, reinforcing the conclusion that the warrants of attachment could not stand.
Whether the Respondent bore personal liability
The Court of Appeal had already determined that liability attached to the Respondent personally; the present Court applied that holding to the execution proceedings.
Relying on the Court of Appeal's decision of 17 March 2023 in Dr Olango Onudi v Samuel Okuro & Ors, which dismissed the Respondent's appeal with costs, the Court treated the question of personal liability as settled, the Respondent having failed to show he acted for the County Executive.
Legal principles established
#- An officer who acts without power and fails to show the action was that of the County Executive bears personal liability
- Taxation of party and party costs without an underlying order awarding costs is without legal foundation and execution founded on it cannot stand
Court orders
#- 1.The Court sets aside/vacates the execution/warrants of attachment ex debito justitiae
- 2.The Respondent's properties which were attached, if any, should be released by the auctioneer immediately and at the cost of the Petitioners
- 3.The Respondent to have costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal
- Kisumu Civil Appeal No. 79 of 2018 (Dr Olango Onudi v Samuel Okuro & Ors)
- Jurisdiction invoked
- Inherent jurisdiction of the Employment and Labour Relations Court to set aside execution issued without legal foundation (ex debito justitiae)
Relief refused
#Instalment payment of the decretal sum of Kshs 451,361/-
Became unnecessary as the execution was found to be without legal foundation and was set aside; the decretal costs were never awarded by the Court
Costs
The Respondent to have costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Flowing from the above, the Court sets aside/vacates the execution/warrants of attachment ex debito justitiae.
Without an order granting the Petitioners costs, the taxation of the party to party costs was without legal foundation. The ensuing execution, therefore, cannot stand.
It is apparent to this Court that the Deputy Registrar sitting as a Taxing Oficer proceeded to tax the Petitioners Bill of Costs without jurisdiction.
The Respondent’s properties which were attached, if any, should be released by the auctioneer immediately and at the cost of the Petitioners.
The Respondent to have costs.
Issues in the judgment
#Names of the parties are not stated anywhere in the judgment; they are referred to only as 'Petitioners' and 'Respondent'.
The case number of the suit before the Court is not stated in the judgment.
Item (a) of the Motion is elided in the judgment text ('…'), so the full relief sought is not on the record.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okuro & 7 others v Onudi (Petition 5 of 2018) [2024] KEELRC 1342 (KLR)", Case Analysis (2024). Not stated in judgment extract (references Kisumu Civil Appeal No. 79 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1342/eng@2024-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.