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ELRCDismissedNotice of Motion dated April 9, 2024 (originally filed in High Court at Bungoma; arising from Bungoma ELRCC 11/2019)

Okutoyi t/a Armok Auctioneers v Independent Electoral and Boundaries Commission; John (Client) (Miscellaneous Case 2 of 2024) [2024] KEELRC 2121 (KLR)

Environment and Land Court
25 July 2024
2,289 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court set aside an auctioneer's attachment against the IEBC because he skipped the mandatory procedure for executing decrees against government.

What this practically means

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Executive summary

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This ruling by J.W. Keli, Judge, Environment and Land Court at Kakamega, determined an unopposed Notice of Motion by an auctioneer seeking payment of auctioneer charges arising from execution of warrants of attachment and sale of movable property issued on 14th February 2024 in Bungoma ELRCC 11/2019 against the Independent Electoral and Boundaries Commission. The auctioneer, a Class 'B' licence holder, contended he served a proclamation notice at the Respondent's Bungoma office and was entitled to full costs upon proclamation under the Auctioneer Rules, 1997. The Respondent, though not opposing formally, submitted in written submissions that it is a state organ under Article 88(1) of the Constitution, hence 'Government' under section 21 of the Government Proceedings Act, and that execution against it without strict compliance with section 21 is incompetent, relying on Five Star Agencies v National Land Commission and the Karume principle that prescribed procedures must be strictly followed. The court adopted a single issue: whether the application merited. It found the Respondent is a state organ and part of Government; section 21(4) GPA prohibits execution against Government; and the applicant ignored the mandatory procedure, rendering the execution unlawful. Citing Republic v PS Ministry of Internal Security Ex-Parte Mwandihi and Stephen Mwallyo Mbondo, the court set aside the warrants of attachment for unlawfulness, held the Respondent not liable for costs flowing from an illegality, and dismissed the application with no order as to costs, the judgment debt remaining unsettled.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application merited?
  2. 2.Whether the Applicant is entitled to costs

Key legal issues

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01

Whether execution by the auctioneer against the Respondent, a state organ, was lawful

Holding

The execution was unlawful because the applicant failed to comply with the mandatory procedure in section 21 of the Government Proceedings Act; the warrants were set aside.

Reasoning

The Respondent asserted it is a state organ under Article 88(1) of the Constitution and thus 'Government' under section 21 of the Government Proceedings Act; the Applicant did not respond. Relying on Five Star Agencies and section 21(4) GPA, the court held execution against government is barred and the statutory procedure must be strictly observed. Absent compliance, the warrants of attachment and their execution were unlawful.

p. 5
02

Whether the Applicant is entitled to auctioneer's costs

Holding

No; costs cannot flow from an unlawful execution process, and no costs of the application were awarded.

Reasoning

Since the warrants were set aside as unlawful, the court held the Respondent could not be liable for costs arising from an illegality. The court also noted the judgment debt remained unpaid, and declined even the costs of the application, dismissing it with no order as to costs.

p. 5

Legal principles established

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  • Execution against the Government is prohibited save as provided in section 21 of the Government Proceedings Act, which must be strictly followed
  • Where the law prescribes a clear procedure, it must be followed and cannot be ignored

Court orders

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  1. 1.The warrants of attachment and sale of moveable properties issued on 14th February 2024 are set aside for being unlawful
  2. 2.The application is dismissed
  3. 3.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Rule 7A, B, C and Rule 55(1)(2)(3) of the Auctioneer Rules, 1997; Auctioneers (Practice) Rules 2009; Order 51 of the Civil Procedure Rules

Relief refused

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Direction that the respondent pay auctioneer charges and expenses from execution of warrants of attachment

The execution process was unlawful as section 21 of the Government Proceedings Act was not followed, and the respondent cannot be liable for costs arising from an illegality

p. 5

Taxation and assessment of the auctioneer's bill of costs and its deemed adoption as a decree

The warrants having been set aside for unlawfulness, the application was dismissed

p. 6

Costs

No order to costs as the Respondent has yet to settle the judgment debt

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The warrants of attachment and sale of moveable properties issued on 14th February 2024 having been obtained and issued in an unlawful execution process are set aside for being unlawful.
p. 5setting aside of warrants
The application is dismissed with no order to costs as the Respondent has yet to settle the judgment debt.
p. 6final orders
where the law provides a clear procedure for executing a particular act (including execution of decrees and orders), this procedure should as a general rule, be followed. A party cannot ignore it.
p. 5mandatory statutory procedure
Only funds that have been approved in the agency's budget can be lawfully paid out and the agency must be shielded from a run-in on its assets through attachments
p. 5execution against state organs

Issues in the judgment

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minor

The judgment inconsistently dates the warrants of attachment and service as 14/02/2024 and 15th February 2024 in the grounds, but as 14th February 2022 and 15th February 2022 in the submissions paragraph

minor

The Applicant's grounding grounds state he received the warrants on 23/02/2024 yet also that he proceeded to serve on 15th February 2024, an earlier date

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Okutoyi t/a Armok Auctioneers v Independent Electoral and Boundaries Commission; John (Client) (Miscellaneous Case 2 of 2024) [2024] KEELRC 2121 (KLR)", Case Analysis (2024). Notice of Motion dated April 9, 2024 (originally filed in High Court at Bungoma; arising from Bungoma ELRCC 11/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2121/eng@2024-07-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.