Kennedy K. Shikuku t/a Eshikhoni Auctioneers v Classic Interior Ltd [2019] KEELC 2566 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KAKAMEGA

ELC MISC. CASE NO. 14 OF 2019

KENNEDY K. SHIKUKU T/A ESHIKHONI AUCTIONEERS....APPLICANT

VERSUS

CLASSIC INTERIOR LTD............................................................RESPONDENT

RULING

This application is dated 28th February 2019 and is brought under order 22 rule 70 of the Civil Procedure Rules and rules 18 (4) of the Auctioneers (Practice) Rules 2009 seeking the following orders;

1. That service of this application be dispensed with and be heard ex-parte as provided for under Rules 17 (5) and (6) of the Auctioneers Rules 1997.

2. That a vesting order be issued directing that L.R. BUTSOTSO/INDANGALASIA/5879, 5325 and 825 sold in a Public auction by Eshikhoni Auctioneers on 21/12/2018 be ordered transferred to Samwel Omusula Libuyi of ID. No. 9791985 who was declared the highest bidder and has fully paid the bid money.

3. That the Deputy Registrar of this court be ordered or directed to sign all the relevant transfer documents required to give good titles to the said Samwel Omusula Libuyi.

4. The costs of this application be in the cause.

It is supported by the affidavit of Kennedy K. Shikuku and the following general grounds that, the sale conducted by Public Auction after due process in Kakamega CMC No. 8 and 17 of 2017 has now been successfully concluded. It will be in the interest of justice to have the land parcels BUTSOTSO/INDANGALASIA/5879, 5325 and 825 transferred to the person declared the highest bidder and has fully paid the bid money. That it will be in the interest of justice to have the decree holder be able to enjoy the fruits of his judgment.

The respondent submitted that, the application is premature as there are pending proceedings involving the parties before an arbitrator coming up on 29th March, 2019.  That the auction herein never took place by one Laban Odero who appeared at the stated place and time on behalf of the interested purchaser one Decording Ltd that the applicant herein never turned up. That the said purported auction is a sham and they shall separately bring proceedings to void the same. That he was denied the equitable right of redemption.

This court has considered the application and the submissions therein. It is clear this application is seeking to enforce a right. Under Section 19 of the Civil Procedure Act, every suit shall be instituted in such manner as may be prescribed by rules. Order 3 Rule 1 prescribes the way in which suits should be instituted. It specifically provides that “every suit shall be instituted by presenting a plaint to the court, or in such other manner as may be prescribed.” Suits in some instances can also be commenced through originating summons.

In the case of Joseph Kibowen Chemjor vs William C. Kasera (2013) eKLRMunyao J. held that;

“It means therefore that where a person is commencing a civil suit ( in this instance to enforce a civil action), he needs to follow prescribed rules. There are times when all that a person wants is an order of court where the rights of the parties are not going to be determined. There is no “action” being enforced or being tried. In many such instances, it is the discretion of the court being sought or a procedural issue sought to be endorsed. The court in such a case is not being asked to determine any rights of the parties. Now, the Civil Procedure Rules do not specifically provide for the procedure to be followed where there is no “action”. In such instances, I think it is permissible for such person to file a miscellaneous application because the court is not asked to determine any issues between the parties. This is common and permissible where all that the party wants is a mere order from the court which does not settle any rights or obligations of the parties. This for instance can cover applications for leave to institute suit out of time or for leave to commence judicial review proceedings”.

I concur with the authority above and the 1st respondent’s submissions that a party cannot seek to enforce a right through a miscellaneous application like this one. It is my considered view that seeking to cancel, nullify, deregister and or revoke all sub-division of particular titles and transferring title is an enforcement of a right. The facts are not before this court and there is no suit before me. I find this application has no merit and I dismiss the same with costs.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 4TH JULY 2019.

N.A. MATHEKA

JUDGE