Church Commissioners for Kenya v Albert Ekirapa T/A Kakapel Institute of Information & Communcation Technology [2015] KEHC 6448 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENAY AT BUSIA.

ENVIRONMENT  AND LAND CASE NO. 20 OF 2012.

THE CHURCH COMMISSIONERS FOR KENYA…………………..………….APPLICANT

VERSUS

ALBERT EKIRAPA T/A KAKAPEL INSTITUTE  OF

INFORMATION & COMMUNCATION TECHNOLOGY…………………….RESPONDENT

AND

KENNEDY SHIKUKU T/A ESHIKHONI AUCTIONEERS………………….AUCTIONEERS.

R U L I N G.

The CHURCH COMMISSIONERS OF KENYA (Registered Trustees),  hereinafter referred to as the Applicant filed the notice of motion dated 28th November, 2014 seeking  directions on whether  the auctioneers are entitled to costs and the party to pay such costs if at all. The Application named Albert Ekirapa T/A Kakapel Institute of Information and Communication Technology as the Respondent, and will hereinafter refer to as the Respondent.  It also named the auctioneers as Kennedy Shikuku  T/A Eshikhoni  Auctioneers.

The application is supported by the affidavit of Desmond Mtula sworn on 27th November, 2014.

The Respondent filed a replying affidavit  sworn by Joseph  Vitalis Juma  on 15th December, 2014 while the auctioneers filed theirs  sworn by Kennedy Shikuku on 19th January, 2015.

The application was heard on 20th January, 2015 and Mr.  D.M. Wanyama  and Mr.Wanyama  advocates for the Applicant and auctioneers respectively submitted.

I have carefully considered the submissions by both counsel, the contents of the supporting and two replying affidavits and find as follows;-

That the record shows that the Applicant’s suit was struck out with costs on 25th July, 2013. It therefore follows that the Respondent’s/Defendant’s costs was to be paid by the Applicant/Plaintiff herein.

That the warrants for attachment and sale were applied for by the counsel for the Respondent though their letter dated 11th August, 2014 and duly issued on 12th August, 2014.

That Jane  Onyapidi, Andrew  Juma and  Stephen  Omanyala, against  whom the warrants were issued and proclamation dated 27th August, 2014 done,  have to date not raised  any objection to the proclamation.

That indeed following the proclamation by the auctioneers, the Applicant  cleared the Respondents claim. That  the Applicants counsel, by letter dated 5th  November, 2014 addressed to Eshikhoni  Auctioneers, asked  the Auctioneers to ‘’urgently draw your bill of costs to enable  us advice  our client to settle the same.’’

That  the auctioneers have properly issued with  the warrants whose authencity  has not been challenged. The auctioneers definitely incurred expenses and the judgment debtor who is the Applicant herein is under a duty to pay such expenses.

That  flowing from the foregoing and for avoidance  of doubts, the  court issues the following directions;

That Kennedy Shikuku  T/A Eshikhoni  Auctioneers is entitled  to the costs  to be agreed or taxed.

That the agreed or taxed costs of the auctioneers be paid by the Applicant/Plaintiff herein.

The Applicant/Plaintiff to bear the costs of this application for both the Respondent and the Auctioneers.

It is so ordered.

S.M. KIBUNJA

JUDGE,

DATED AND DELIVERED ON   23RD DAY OF FEBRUARY, 2015.

IN THE PRESENCE OF;……………N/A……………………..APPLICANT.

……………  N/A……………………..RESPONDENT

ADVOCATES…M/S. NASIKE  WAFULA FOR APPLICANT AND MR. J. V. JUMA FOR RESPONDENT.

JUDGE.