Okech & another v Okoth & 3 others (Environment and Land Case 26 of 2021) [2025] KEELC 7902 (KLR)
The bottom line
#A Siaya court cancelled property attachment warrants because the auctioneer broke Kenya's rules on listing and signing seized goods, and the debtor pays nothing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court had jurisdiction to issue warrants of attachment.
- 2.Whether the execution process of obtaining the warrants of attachment was regular.
- 3.Whether the cost of the auctioneer's charges and any incidental charges should be borne by the respondents.
- 4.Who should bear the costs of this application.
Key legal issues
#Whether the warrants of attachment were issued without jurisdiction because they emanated from the Principal Magistrate's Court at Siaya rather than the Environment and Land Court.
The jurisdictional objection fails; the reference to the Principal Magistrate's Court was an erroneous citation (typographical error) and Section 31 of the Civil Procedure Act does not apply.
The court noted the suit number 26 of 2021 (OS) was correctly serialised and only the domicile court was wrongly given as the Principal Magistrate's Court. The Certificate of Costs was stamped and signed by the Deputy Registrar ELC Court, confirming the ELC provenance. A typographical error on the face of warrants does not render them null and void, and no transfer order under Section 31 was needed.
Whether the execution process was regular.
The execution was irregular: the proclamation was not signed by the debtor or any authorised person, the witness's credentials were incomplete, and the auctioneer's certificate appeared false.
Rule 12(1)(b) of the Auctioneers Rules requires the proclamation inventory to be signed by the owner or an adult resident/worker at the premises. The schedule listed household items yet the debtor's signature was absent; the certifying officer attested a signature the court could not see; the lone witness 'Suleiman' gave no credentials. The respondent gave no rejoinder, and the burden shifted to him to disprove the allegations.
Whether the auctioneer's charges should be borne by the respondents.
The auctioneer cannot be entitled to fees against the applicant, having participated in the irregular execution.
Following Ramogi v Great Lakes University Kisumu, where a decree holder and auctioneer fail to adhere to the Auctioneers Act and Rules, they are guilty of misdeed and may be mulcted with costs. Since the process here was irregular, the auctioneer cannot benefit from his own illegality by charging fees against the applicant.
Legal principles established
#- A proclamation of attached movable goods must be signed by the owner of the goods or an adult person residing or working at the premises, per Rule 12(1)(b) of the Auctioneers Rules; non-compliance renders the execution irregular.
- An execution process conducted in breach of the Auctioneers Rules is irregular and cannot stand; an auctioneer cannot benefit from an irregularity in which he was a participant.
- A typographical error in the citation of the decree holder's court on the face of warrants does not, by itself, impugn the warrants where the correct suit serialisation is evident and the certificate of costs was duly issued by the proper registry.
Court orders
#- 1.The entire execution process of the warrants of attachment dated 13/06/2025 be and is hereby set aside for being irregular and unlawful.
- 2.The proclamation dated 18/06/2025 is hereby recalled and set aside.
- 3.The warrants of attachment and warrants of sale dated 13/06/2025 be recalled/lifted and cancelled.
- 4.The applicant shall not bear the auctioneers fees.
- 5.The costs of this application shall be borne by the Defendants.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Civil Procedure Act, Section 31; Order 22 of the Civil Procedure Rules, 2010; Auctioneers Rules (Rule 12(1)(b), Rule 13)
Relief refused
#Determination of the alleged excess interest charged under the warrants
The court declined to determine the interest question as the matter was not before it for review proper; that issue lies with the Deputy Registrar and taxing officer.
Costs
The costs of this application shall be borne by the Defendants; the applicant shall not bear the auctioneer's fees.
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 entire execution process of the warrants of attachment dated 13/06/2025 be and is hereby set aside for being irregular and unlawful.
The proclamation dated 18/06/2025 is hereby recalled and set aside.
The warrants of attachment and warrants of sale dated 13/06/2025 be recalled/lifted and cancelled.
Clearly the rules and procedure as discussed hereinbefore were ignored and the court cannot be seen to sanction impunity. It is the finding of this court that the process was irregular and nothing can come out of an irregularity.
I would therefore not impugn the warrants of attachment for a typographical error on its face.
The applicant shall not bear the auctioneers fees.
Issues in the judgment
#Discrepancy in the taxed costs figure and date between the parties: applicant alleges Kshs. 418,275 taxed on 16/01/2025 while respondent states Kshs. 419,275 taxed on 7th September 2022; the court's own record review refers to a bill of Kshs. 419,275.00 and a certificate of costs dated 7/9/2022.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okech & another v Okoth & 3 others (Environment and Land Case 26 of 2021) [2025] KEELC 7902 (KLR)", Case Analysis (2025). Notice of Motion dated 28th June, 2025 (arising from Siaya ELC Case No. 26 of 2021 (OS)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7902/eng@2025-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.