The recent case of Sitienei & Another v Lang'at t/a Kaloto Auctioneers examined the lawfulness of an auctioneer's execution process and entitlement to costs when there is an existing court order staying execution. Justice Nderitu analyzed whether the auctioneer acted lawfully when enforcing a court decree despite being aware of a stay order from a superior court. The case highlights the requirement for auctioneers as officers of the court to act diligently and in fidelity to lawful court orders. It affirms that costs of execution are payable by the judgment debtor unless specifically directed otherwise by the court.
Title: Sitienei & Another v Lang'at t/a Kaloto Auctioneers
Court: Employment and Labour Relations Court at Nakuru
Judge: D.N. Nderitu
Sitienei and Kiprop were petitioners awarded compensation by the ELRC against their former employer, University of Eldoret.
The University appealed the compensation award to the Court of Appeal and later the Supreme Court.
On 1st November 2019, the Supreme Court issued orders staying execution of the Court of Appeal judgment.
However, on 11th November 2019, the petitioners' lawyers instructed auctioneer Lang'at to proceed with executing the decree against the University.
Lang'at obtained warrants of attachment and executed despite being aware of the stay order.
Petitioners later settled compensation with the University through garnishee proceedings.
Lang'at filed bills of costs against the University and petitioners seeking auctioneer's fees.
Whether the execution process by Lang'at was lawful when a stay order existed.
Whether Lang'at was entitled to recover his costs from the petitioners.
The execution process was null and void ab initio as it violated the Supreme Court's stay order.
As an officer of court, Lang'at should have sought clarification before acting on instructions against a stay order.
Auctioneer's costs are payable by the judgment debtor unless specifically ordered otherwise.
Taxing the auctioneer's costs against the petitioners was erroneous and unlawful.
The taxing officer's decision and certificate of costs against the petitioners was set aside.
Each party to bear their own costs as all participated in the unlawful execution process.
Auctioneers must act lawfully and in fidelity to court orders despite instructions from litigants.
Costs of execution are borne by the judgment debtor unless specifically ordered otherwise.
Unlawful execution in violation of a stay order is null and void ab initio.