Wilson Kiama t/a Dask Auctioneers v Diamond Trust Bank of Kenya Limited [2023] KEHC 23669 (KLR)

Wilson Kiama t/a Dask Auctioneers v Diamond Trust Bank of Kenya Limited (Miscellaneous Case E154 of 2022) [2023] KEHC 23669 (KLR) (11 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23669 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Case E154 of 2022

DKN Magare, J

October 11, 2023

Between

Wilson Kiama t/a Dask Auctioneers

Applicant

and

Diamond Trust Bank of Kenya Limited

Respondent

Ruling

1. The Applicant herein filed an Application dated September 26, 2022 and Amended on July 24, 2023 substantially seeking the relief that the Bill of Costs in Mombasa HCCC No 16 of 2011 be struck out in light of the Judgment of the Court of Appeal delivered on April 14, 2023 in Appeal Case No E74 of 2023.

2. The Application was supported by the Affidavit of Francis Kariuki and Further Affidavit of Faith Adonga and was principally based on the following Grounds:a.The impugned Bill of Costs arose from a Judgment of Court that had since been set aside by the Court of Appeal.b.The alleged execution levied by the Respondent thus was illegal and improper and the Bill of Costs dated July 20, 2022 and leading to the execution ought to be struck out as such.

3. The Respondent filed its Replying Affidavit sworn on July 10, 2023 opposing the Application substantially on the grounds that:a.The Respondent acted on instructions based on a valid court decree pursuant to which the warrants were lawfully executed.b.The Auctioneer’s fees is paid upon the Auctioneer receiving instructions and was as such due immediately the Applicant received the instruction.

Analysis 4. In a nutshell, whereas on the one hand, the Applicant contents that the execution process arising from the Judgement and Decree of Court in Mombasa HCCC No 16 of 2011 cannot be lawful when in fact the said Judgement and Decree has since been set aside and so the Bill of Cost therefrom is null and void, the Respondent on the other hand contents that the process of execution is valid because it commenced before the said Judgment and Decree were set a side and in any event, the auctioneer’s fees was due upon receipt of the instructions and has to be paid, regardless.

5. There is no dispute by the parties that there is pending execution in but that the Court of Appeal has since set aside the Decree arising therefrom.

6. Whereas the Applicant contents that the Bill of Costs and the execution pursued by the Respondent in respect of the Judgment and Decree in Mombasa HCCC No 16 of 2011 is illegal, with due respect, this court disagrees and notes that the execution was lawful since it was commenced before the decision of the Court of Appeal. However, after the Court of Appeal’s Judgment, the Bill of Costs, in so far as it is directed to the Applicant, is improper and a nullity. The Respondent ought to pursue the party who instructed him to commence instructions and not the Applicant.

7. When faced with a similar fact issue in Gusii Mwalimu & 2 others –v- Mwalimu Hotel Kisii and Nzoia Sugar Co Ltd-v- Nzoia Sugar Co ltd & 3 others [2014] eKLR Justice Mabeya held in the later that;'As far as I know, the position in law is that, the effect of issuance of Warrants against a judgment/debtor is that any costs incurred in their execution is upon such debtor. However, when such Warrants are recalled and annulled, it means that whatever was done pursuant to their issuance is also a nullity. The debtor is absorbed from acting on them. That leaves the Court with the party who applied for their issuance, in this case the Applicant. It is the Applicant who caused the issuance of the Warrants that were a nullity. Any costs incurred as a result thereof must fall where they lie, at the Applicant's doorstep. Accordingly, I hold that the charges of the auctioneer in the execution of the Warrants dated 11th and October 12, 2011 are payable by Nzoia Outgrowers Company Ltd.'

8. In the circumstances, I find that the Application is merited and allow it.

Determination 9. In the upshot I allow the Application in terms of prayer 4A as follows:a.The Applicant’s Bill of Costs dated July 20, 2022 be and is hereby struck out as against the Respondent as the Judgement dated January 25, 2021 and issued in Mombasa HCCC No 16 of 2011 as Consolidated with Mombasa HCCC No 72 of 2012- Fuad Mahamoud Mohammed vs Diamond Trust Bank Kenya Limited & Another against the Respondent was set aside by the Court of Appeal in a Judgement delivered on 14th April 2023 in Mombasa Court of Appeal Civil Appeal No E074 of 2021- Diamond Trust Bank Kenya Limited vs Fuad Mahamoud Mohammed and Diamond Trust Insurance Agency.b.Each party shall bear its own costs.

It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA ON THIS 11TH DAY OF OCTOBER, 2023. KIZITO MAGAREJUDGEIn the presence of: -Mr. Janjo for the RespondentMs Randa for the Applicant