Caesar Njagi Kinguru v Josiah Mwangi Marig [2013] KEHC 2583 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL NO. 170 OF 2012

CAESAR NJAGI KINGURU   …………………….….… APPELLANT

VERSUS

JOSIAH MWANGI MARIGI  ……………………….. RESPONDENT

(Being an appeal from the judgment/decree of the Senior Principal Magistrate’s Court at Kitui of Hon A.G. Kibiru SPM  in  Senior Principal  Magistrate  Case No.  66 of   2006 dated 2nd October 2012)

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(Before B. Thuranira Jaden J)

R U L I N G

The application dated 14/12/2012 is brought under Order 51 Rule 1, Order 42 Rule 6 and 32 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act.

The application seeks the following orders:-

“(Spent).

THAT, this Honourable Court be pleased to order a stay of execution of the judgment/decree of the learned trial magistrate, theHon. Mr. A.G. Kibiru SPMdated 2/10/2012 inKitui SPMCC No. 66of2006 because the judgment did not find as ought to be who between the appellant and the Respondent was the owner of motor vehicleReg. No. KUM 220which is what the case was all about yet he appreciated the motor vehicle in many aspects belonged to the Appellant.  The judgment before the eyes of the law was no decision at all since it caused more grieve to the Appellant than when he first sought court’s intervention in the matter on 2/3/2006 seven years down the line despite there being overwhelming evidence that he is actually the owner.

THAT this Honourable Court be pleased to order release of motor vehicleReg. No. KUM 220 to the Appellant as the owner and/or order its transfer from the custody ofKitui Police StationtoMachakoseven if at the Appellant’s costs.

THAT the costs of this application be provided for.”

The application is supported by the affidavit of the applicant, Caesar Njagi Kinguru sworn on 14/12/12.

According to the said affidavit, motor vehicle Reg. No. KUM 220 was placed under the custody of Kitui Police Station pending the hearing and determination of the suit in Kitui PMCC No. 66 of 2006.  The Applicant averred that the record of appeal has been availed and the court has the discretion to issue the orders sought.

In opposition to the application, the Respondent swore a replying affidavit on 5/2/2013.  The Respondent is opposed to the release of motor vehicle in question.  The Respondent also claims ownership of the motor vehicle and wants the motor vehicles released to him.

The judgment of the lower court dismissed both the Plaintiff’s suit and the Defendant’s counterclaim.  The Applicant was the Plaintiff in the lower court and had sought declaratory orders inter alia that the motor vehicle in question belonged to him.  In his counterclaim, the Respondent who was the 1st defendant counterclaimed, inter alia that the Applicant be ordered to transfer the motor vehicle to him or in the alternative that the Applicant do refund the Kshs.320,000/= purchase price.

With a dismissal of the plaint and the counterclaim the dispute was left unresolved.  There are therefore no orders to be stayed by this court.  The question of ownership and therefore the release of the motor vehicle can only be determined after hearing of the appeal.  The parties should therefore move to fix the appeal for hearing on a priority basis.  Application dismissed with costs.

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B. THURANIRA JADEN

JUDGE

Dated and delivered at Machakos this 11thday of July2013.

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B. THURANIRA JADEN

JUDGE