KURONYA AUCTIONEERS v MAURICE O. ODHOCH & ANOTHER [2003] KECA 2 (KLR)
The bottom line
#Auctioneers who seize the wrong person's property can be sued for damages in Kenya, even when acting on a valid court warrant.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Maurice's suit for damages for wrongful attachment was barred by section 34 of the Civil Procedure Act, which reserves questions relating to execution of a decree to the court executing the decree.
- 2.Whether the learned Judge erred in law in relying on the Auctioneers Act (Act No. 5 of 1996) when that Act was not applicable to the circumstances of the case.
- 3.Whether an auctioneer who, armed with a warrant to attach the goods of a specified party, attaches the goods of a wrong party can claim the immunity given by section 6 of the Judicature Act.
- 4.Whether the suit was barred by res judicata under section 7 of the Civil Procedure Act because Busia SRMCCC No. 576 of 1994 had decided the issue relating to the attachment of Maurice's goods.
Key legal issues
#Scope of section 34 of the Civil Procedure Act as a bar to a separate suit
Section 34 does not bar Maurice's suit. It covers only questions arising between parties to the suit in which the decree was passed, or their representatives, relating to execution, discharge or satisfaction of the decree, and says nothing about damages payable to a person against whom a decree is executed when he is not the judgment-debtor.
Section 34 confines to the court executing the decree all questions arising between the parties to that suit, or their representatives, relating to execution, discharge or satisfaction of the decree. Maurice was neither a party to the Busia suit in which the Bank obtained its decree against Erastus Mwanga nor the judgment-debtor. His claim is in tort, for compensation for wrongful execution and trespass, and such a claim does not relate to execution, discharge or satisfaction of the decree. The section therefore affords no bar, and the first ground of appeal fails.
Application of the Auctioneers Act, 1996 to a pre-Act execution
The High Court erred in applying section 26 of Act No. 5 of 1996 to hold the auctioneer liable, since the Act did not exist when the execution was levied and is not retrospective, but the misdirection did not affect the result because liability exists at common law in any case.
The execution was levied before Act No. 5 of 1996 came into force and that Act is not retrospective in operation, so the Judge misdirected himself in applying section 26 to found liability. Counsel for the auctioneer was right on that point. The Court nonetheless held the misdirection could not affect the result of the appeal, because independently of the statute the auctioneer is liable at common law to the party wronged by the attachment. The ground therefore availed the appellant nothing.
Whether section 6 of the Judicature Act immunises an auctioneer who attaches a wrong party's goods
No. Section 6 cannot provide protection to an auctioneer who attaches the goods of a wrong party; such a party has a common law right of recourse against the auctioneer and the decree-holder, and the auctioneer cannot have the suit struck out in limine on the basis of that section.
Section 6 protects a person bound to execute lawful warrants, orders or process from being sued for executing what he would have been bound to execute. Davis & Shirtliff decided only that no action lies against the government for acts done in execution of judicial process or for an auctioneer's defalcations; it did not shield auctioneers generally. Following Simiyu v Sinino, a party who sets execution in motion against a wrong person, even without malice, is liable at common law for trespass and wrongful execution, so section 6 is no basis for striking out the suit.
Res judicata under section 7 of the Civil Procedure Act
The Busia suit and Maurice's appeal decided only that the attachment of his goods was wrongful; they did not decide the auctioneer's liability in damages or the quantum payable, so those issues cannot be res judicata and remain for the Chief Magistrate at Kisumu.
The Busia proceedings and the appeal from the dismissal of Maurice's objection established only that the attachment of his goods was wrongful. Neither the auctioneer's liability in damages nor the quantum of damages was in issue or decided there. Those questions are for the Chief Magistrate's Court at Kisumu, and a prior decision that the attachment was wrongful cannot make them res judicata under section 7 of the Civil Procedure Act.
Legal principles established
#- Section 34 of the Civil Procedure Act does not bar a separate suit for damages for wrongful execution or trespass by a person who is neither a party to the suit in which the decree was passed nor the judgment-debtor.
- Section 6 of the Judicature Act does not confer immunity on an auctioneer who, though armed with a warrant against a specified party, attaches the goods of a wrong party; the wronged party has a common law recourse against both the auctioneer and the decree-holder.
- A determination in execution proceedings that an attachment was wrongful does not render a subsequent suit for damages for that wrongful attachment res judicata; liability and quantum remain to be tried.
Court orders
#- 1.The appeal is dismissed.
- 2.Costs of the appeal awarded against the appellant auctioneer (the appeal was dismissed 'with costs').
- 3.The orders of the High Court (Tanui, J) allowing Maurice's appeal and directing that the file be placed before the Kisumu Chief Magistrate's Court for trial and disposal stand, the appeal against them having been dismissed.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- H.C.C.A. No. 130 of 2001
- Jurisdiction invoked
- Not expressly stated in the judgment. The matter reached the Court of Appeal as an appeal from the judgment and order of the High Court of Kenya at Kisumu (Tanui, J) in H.C.C.A. No. 130 of 2001; no constitutional or statutory provision is cited as the source of jurisdiction.
Relief refused
#A declaration that Maurice's suit was barred by section 34 of the Civil Procedure Act (first ground of appeal).
Section 34 applies only to questions arising between parties to the suit in which the decree was passed relating to execution, discharge or satisfaction; a damages claim in tort by a person who is not the judgment-debtor falls outside it.
Allowance of the appeal on the ground that the High Court wrongly applied section 26 of the Auctioneers Act, 1996 (second ground of appeal).
Although the Judge erred, since the Act did not exist when the execution was levied and is not retrospective, the misdirection could not affect the result because the auctioneer is liable at common law in any event.
Striking out the suit on the basis that section 6 of the Judicature Act immunised the auctioneer against liability for executing court process.
The immunity does not extend to an auctioneer who attaches the goods of a wrong party; the wronged party has common law recourse against the auctioneer and the decree-holder.
A finding that the suit was res judicata under section 7 of the Civil Procedure Act by reason of Busia SRMCCC No. 576 of 1994 (last ground of appeal).
The Busia suit and the appeal thereon decided only that the attachment was wrongful; liability in damages and quantum were never determined and remain for trial before the Chief Magistrate at Kisumu.
Costs
The appeal was dismissed with costs - verbatim: 'This appeal is therefore dismissed with costs.' The judgment does not specify which of the two respondents receives the costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of all this is that we see no merit in grounds 1, 3 and 4 in the memorandum of appeal and we are of the view that despite the wrongful reliance on Section 26 of Act No. 5 of 1996 in the end the learned Judge arrived at a correct decision. This appeal is therefore dismissed with costs.
The ratio decidendi of the Simiyu case is that if the execution is levied against a wrong party that party has a right of recourse against the auctioneer as well as the decree-holder despite the protection given to the auctioneer by Section 6 of the Judicature Act and that such recourse is at common law.
That case decided that a party who sets in motions the process of execution against a wrong person, even though not maliciously, becomes liable at common law for damages for trespass and wrongful execution.
It stands to reason to say that Section 6, cannot provide protection to an auctioneer who attaches the goods of a wrong party.
For the purposes of compensation for the torts of wrongful execution or trespass the wronged party cannot be said to be a party to the original suit as such a claim does not relate to execution, discharge, or satisfaction of the decree.
I would therefore hold that the respondent, as the only party before us on this appeal, is liable to the appellant in damages for trespass for the wrongful attachment of his goods.
Issues in the judgment
#The judgment is headed 'IN THE COURT OF APPEAL OF KENYA AT KISUMU' but is dated and delivered at Nairobi, creating a discrepancy between the court station in the caption and the place of delivery.
The court records uncertainty about the appellant's legal status (proprietary firm or partnership), which may affect entity identification in the corpus.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KURONYA AUCTIONEERS v MAURICE O. ODHOCH & ANOTHER [2003] KECA 2 (KLR)", Case Analysis (2003). Civil Appeal 31 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/2/eng@2003-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.