|Judicial Review 7 of 2009
|REPUBLIC v CHAIRMAN LUGARI LAND DISPUTES TRIBUNAL Ex-parte PERUS OTIENO, GIDEON OGINGA & JAIRUS OUNZA OTIENO
|14 Apr 2011
|High Court at Kakamega
|REPUBLIC v CHAIRMAN LUGARI LAND DISPUTES TRIBUNAL Ex-parte PERUS OTIENO & 2 others  eKLR
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
IN THE HIGH COURT OF KENYA
JUDICIAL REVIEW NO. 7 OF 2009
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B E T W E E N
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R U L I N G
“18. I will quickly end by stating that the Motion before me is clothed with merit and is wholly allowed as prayed.
2. I see no extracted order on record but on 19.5.2010, M/S Kiveu & Co. Advocates filed a Bill of Costs and Certificate of Costs was issued by the Deputy Registrar of this court on 29.7.2010. Execution proceedings thereafter commenced and by a Notice of Motion dated 29.9.2010 the present Applicant prayed for orders that;
2. One John M. Kitiabi T/A Nyuki Auctioneers be enjoined to this proceedings for the purposes of this application.
4. The Honourable Court do find as a matter of fact that if any of the respondents were eager to have costs awarded to them against the applicant they ought to have moved the court for an express order to that effect and do declare so.
6. The Honourable Court do find as a matter of fact that the application for and the execution itself was irregular, unlawful and un-procedural having been undertaken without regard to the available legal framework.
8. This Honourable Court finds as a matter of fact that the KShs.35,000.00 extorted from the applicant by the 5th respondent and the KShs.17,000.00, extorted by the 1st, 2nd and 3rd respondents from the applicant was demanded and recurred in contravention of the law and or due process and declare so.
3. The grounds in support are that;
2. In filing and taxing the bill before the Deputy Registrar of the Honourable Court the 1st, 2nd and 3rd respondents deliberately misled the court and abused its process.
4. In executing for costs which clarification was never sought first from the Honourable Court the 1st, 2nd and 3rd respondents clothed themselves with the authority of the Honourable Court, usurped illegally the court’s powers and acted with selfishness and malice against the applicant.
6. The 5th defendant/respondent illegally attached before proclaiming hence the necessity of enjoining him to the application.
8. Proceedings in the matter had been concluded with the previous counsels on record save for the execution and the foregoing application.
10. The money demanded from the applicant by the 1st, 2nd and 3rd respondents was without any legal basis.”
5. I have seen a Replying Affidavit sworn on 30.11.2010 by the 4th Respondent, the Auctioneer. All he states is that he served notice of intention to execute and once no payment for costs was made, he proceeded to execution.
7. My mind is clear that the Respondent acted unlawfully and by closing his eyes to the clear order on costs; that “costs shall be in the cause,” he read the Ruling of 29.4.2010 selectively and to grant himself costs which I never granted him or intended to. It beats logic that whereas I specifically made an order as to costs, he will fall onto the wording of his Motion and claim costs. If there was any ambiguity in the orders made, the advocate for the Respondent should have sought clarification or rectification or amendment of the order before blindly filing a Bill of Costs which was predicated on no extracted decree or order of this court.
9. Orders accordingly.
J U D G E