Okutoyi t/a Armok Auctioneers v Independent Electoral and Boundaries Commission; John (Client) (Miscellaneous Case 2 of 2024) [2024] KEELRC 2121 (KLR)
The bottom line
#A Kenyan court set aside an auctioneer's attachment against the IEBC because he skipped the mandatory procedure for executing decrees against government.
What this practically means
#Executive summary
#Key legal issues
#Whether execution by the auctioneer against the Respondent, a state organ, was lawful
The execution was unlawful because the applicant failed to comply with the mandatory procedure in section 21 of the Government Proceedings Act; the warrants were set aside.
The Respondent asserted it is a state organ under Article 88(1) of the Constitution and thus 'Government' under section 21 of the Government Proceedings Act; the Applicant did not respond. Relying on Five Star Agencies and section 21(4) GPA, the court held execution against government is barred and the statutory procedure must be strictly observed. Absent compliance, the warrants of attachment and their execution were unlawful.
Whether the Applicant is entitled to auctioneer's costs
No; costs cannot flow from an unlawful execution process, and no costs of the application were awarded.
Since the warrants were set aside as unlawful, the court held the Respondent could not be liable for costs arising from an illegality. The court also noted the judgment debt remained unpaid, and declined even the costs of the application, dismissing it with no order as to costs.
Legal principles established
#- Execution against the Government is prohibited save as provided in section 21 of the Government Proceedings Act, which must be strictly followed
- Where the law prescribes a clear procedure, it must be followed and cannot be ignored
Court orders
#- 1.The warrants of attachment and sale of moveable properties issued on 14th February 2024 are set aside for being unlawful
- 2.The application is dismissed
- 3.No order as to costs
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Rule 7A, B, C and Rule 55(1)(2)(3) of the Auctioneer Rules, 1997; Auctioneers (Practice) Rules 2009; Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okutoyi t/a Armok Auctioneers v Independent Electoral and Boundaries Commission; John (Client) (Miscellaneous Case 2 of 2024) [2024] KEELRC 2121 (KLR)", Case Analysis (2024). Notice of Motion dated April 9, 2024 (originally filed in High Court at Bungoma; arising from Bungoma ELRCC 11/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2121/eng@2024-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.