Makokha & another v Okelo (Substituted in Place of Mose Morris Pamba (Deceased) & another; Wekesa t/a Timpech Auctioneers (Applicant) [2025] KEELC 5332 (KLR) | Execution Of Costs | Esheria

Makokha & another v Okelo (Substituted in Place of Mose Morris Pamba (Deceased) & another; Wekesa t/a Timpech Auctioneers (Applicant) [2025] KEELC 5332 (KLR)

Full Case Text

Makokha & another v Okelo (Substituted in Place of Mose Morris Pamba (Deceased) & another; Wekesa t/a Timpech Auctioneers (Applicant) (Environment and Land Case 111 of 2016) [2025] KEELC 5332 (KLR) (16 July 2025) (Ruling)

Neutral citation: [2025] KEELC 5332 (KLR)

Republic of Kenya

In the Environment and Land Court at Busia

Environment and Land Case 111 of 2016

BN Olao, J

July 16, 2025

Between

Joseph Akhungu Makokha

1st Plaintiff

Eperim Kizito Makokha

2nd Plaintiff

and

Benard Ouma Okelo (Substituted in Place of Mose Morris Pamba (Deceased)

1st Defendant

Vitalis Barasa Nyamboki

2nd Defendant

and

Timothy Wanjala Wekesa t/a Timpech Auctioneers

Applicant

Ruling

1. The Notice of Motion dated 19th March 2025 by Timothy Wanjala Wekesa (the Applicant) came up this morning and upon hearing him virtually, I listed it for ruling on 17th July 2025. He seeks security to enable him attach and sale moveable properties of the Defendants arising out of a taxed Bill of costs.

2. Upon further perusal of the Motion and the annexed affidavits and the judgment delivered by OmolloJ on 27th September 2022, have found that infact it was the Plaintiffs who were condemned to pay the Defendants costs and not the other way round. Therefore, the execution should be as against the Plaintiffs i.e. Joseph Akhungu Makokha and Eperim Kizito Makokha. Yet, from the affidavit of service of Daniel Fwamba Muyekho dated 28th March 2025, it was the Defendants who were served with the Motion and not the Plaintiffs.

3. In the circumstances, the Notice of Motion is directed to the wrong parties. It is hereby struck out. The Applicant to put his house in order and to file a proper Motion to be served upon the Plaintiffs Joseph Akhungu Makokha andEperim Kizito Makokhaand not the Defendants Benard Ouma Okelloand Vitalis Barasa Nyamboki.

4. Orders accordingly.

BOAZ N. OLAOJUDGE16TH JULY 2025RULING DATED, SIGNED AND DELIVERED BY WAY OF ELECTRONIC MAIL ON THIS 16TH DAY OF JULY 2025. BOAZ N. OLAOJUDGE16TH JULY 2025