Hussein Ali Benyoka v Kaydee Quarry Limited [2022] eKLR

Key Facts

Issues

• The court considered the legality of the eviction warrants issued on 24 September 2021, which were based on an application filed on 22 September 2021. The applicant challenged these warrants as founded on a 'fatal illegality' due to the respondent's failure to tax costs before seeking execution. The issue centered on whether such warrants could stand when issued in violation of procedural rules requiring prior cost taxation or judicial leave for execution.
• The court addressed whether the respondent (Hussein Ali Benyoka) violated legal requirements by initiating execution of a decree without first having their costs taxed under Section 94 of the Civil Procedure Act and Order 22 Rule 7(h). The applicant (Kaydee Quarry Limited) argued that the respondent's execution application was illegally premature, as no taxation of costs had occurred and no leave was sought from the court prior to execution. This raised a fundamental question about the validity of execution proceedings initiated in breach of procedural law.

Holdings

• The court found that the Respondent failed to comply with Section 94 of the Civil Procedure Act and Order 22 Rule 7 (h) by not taxing their Bill of Costs before initiating execution proceedings. As a result, the court granted a stay of execution pending the appeal and set aside the eviction warrants issued on 24th September 2021. The court emphasized that no execution orders could issue until the Court of Appeal's determination.
• The court determined that the Applicant's eviction application was unlawful due to procedural irregularities, as the Respondent had not taxed their costs or obtained leave before executing the decree. This constituted a fatal illegality requiring a stay to prevent miscarriage of justice and economic hardship for the Applicant.

Remedies

• The court set aside the orders allowing the application for execution of the decree dated 21st September 2021 and the warrant to the bailiff issued on 24th September 2021. These orders were found to be unlawful due to non-compliance with procedural requirements.
• The court granted a temporary stay of execution against the judgment and decree delivered on 29th March 2019 until the appeal filed in the Court of Appeal is heard and determined by Justice Omollo. The stay was issued on 19th June 2019.
• The court ordered that the costs of the application be in the cause, meaning the costs are to be borne by the parties as determined by the court's discretion.

Legal Principles

Cited Statute

• Civil Procedure Act
• Civil Procedure Rules, 2010

Judge Name

Passage Text

• This court is now functus officio and no execution orders can issue unless the Court of Appeal directs otherwise. Any orders issued are hereby set aside and costs to be in the cause.
• The Applicant was informed that there was pending imminent execution proceedings which would have it evicted from the suit property and all its structures erected on the property forthwith demolished. On perusing the court file, it was apparent that the Respondent's Advocates had applied for execution of the decree on the 22nd August 2021 and that the court granted the said application by issuing the eviction warrants to the Bailiff on the 24th September 2021. On further perusing the court file, it was evident that though the Respondent had filed its party to party Bill of Costs on the 11th August 2021 there were no proceedings before the taxing officer having conducted taxation of this Bill of Costs before commencing the execution proceedings.