Micah Tonui v William Cheruiyot Kirui [2014] KEHC 13 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KERICHO

CIVIL APPEAL N0. 15 OF 2014

MICAH TONUI.............................................APPLICANT

VERSUS

WILLIAM CHERUIYOT KIRUI...............RESPONDENT

RULING

The notice of motion dated 23/07/2014 is brought pursuant to section 3A  Civil Procedure Act and Order 46 rule 6(1)  and (2); seeking that:-

(1) Pending the hearing and disposal of the   appeal, there   be   temporary stay of further execution of decree  and    also   stay of   sale of motor vehicle registration No.KAW 126H, Toyota Station Wagon.

(2) The motor vehicle   registration KAW 126H Toyota Station Wagon, currently held by MOCO AUCTIONEERS, be released conditionally   to the applicant for safe keeping to avoid storage charges.

The application is premised on grounds that:-

(a) There is an appeal pending for hearing which has high chances of success.

(b) The respondents have already received payment of Kshs.300,000/=  from  the   sale   of  the  applicant's other  motor vehicle  registration No.KBK 498V which was attached earlier.

(c)  There is fear that the motor vehicle may be sold at a throw away price.

(d) MOCO AUCTIONEERS of Kisii have no geographical jurisdiction to execute warrants emanating from Bomet County.

This matter was certified urgent and heard under the vacation   rules. No reply had been filed by the respondent.   Mr.  J.K. Rono who appeared on behalf of the applicant submitted on   behalf of the applicant that the continued holding of the motor vehicle would be consumed by storage costs, and the appeal would be rendered nugatory, unless the court grants the orders sought. He urged the court to order unconditional release of the motor vehicle, saying no prejudice will be suffered by the respondent.

It  was his contention that  since another  motor vehicle belonging  to the applicant  had  already  been  sold  in fulfilment of  part payment of  the   decretal sum, at least the  respondent's interests were cushioned, and he  urged the  court to  direct that the sum realised from that sale, be deposited as security in  court.

Mr. Miruka who   held   brief   for  Mr. Gachathi  explained that no  response had been filed  because the  respondent's counsel was  served very  late  i.e.  on 28/07/2014.

I must  first  address the issue  of service, as  it will determine whether the  application as it  stands ought to be considered.  The  respondent does not  deny  being served on  28/ 07/ 2014,  which is indeed confirmed by the affidavit of service sworn by Joseah K. Rono.  This means that by the date of hearing, the respondent’s counsel had at least ten (10) clean days to file a response, in a matter which had already been certified urgent by Sergon J.

Under Order 51 Rule   13(3), an applicant is required to serve the respondent in “not less than seven days before the date of hearing."  In my view, the service was not late, and satisfied the provisions of the Civil Procedure Rules.The respondent’s counsel had sufficient time to file   a response, and having failed to   file   any response, he could only address the court on  points of law - which he  did  not.

It is not in dispute that an appeal has been filed in this matter.  It is also common ground that the motor vehicle is currently being held by MOCO Auctioneers in fulfilment of the execution process.

Under Order 42 Rule 6(2):-

"No order for stay of execution shall be made unless:-

(a) The court is satisfied that substantial loss may result to the applicant unless the order is made, and that the application has been made without unreasonable delay.

(b) Such  security  as  the  court  orders for  due  performance of  such decree or order as may ultimately be binding on   him has been  given  by the applicant."

In  the  supporting  affidavit sworn by  MONICAH  TONUI, she  deposes that  the   motor vehicle has  already  been taken  by   the   auctioneer  to  their  yard  in Kisii   Town. Besides attaching the  motor vehicle, the auctioneers have proclaimed  her   other assets,  and she  has  already lost another  motor vehicle KBK 498U   Toyota Hiace, sold   by way  of auction which realised a sum of Kshs.300,000/=.

From  the   memorandum of  appeal, what I  can glean is that the  judgment for  which execution is being pursued, was  entered subsequent  to  failure  by  the   applicant  to defend  the   suit.   Her   contention in   the appeal is that such failure was occasioned by her insurer who failed to defend her.

I have perused the annexed proclamation form issued by MOCO Auctioneers; listing several other assets belonging to the applicant without disclosing how   much money is being executed for.  If a motor vehicle registration No.KBK 498U Toyota Hiace was   sold   for  Kshs.300,000/= then I am   not   surprised that the  applicant has fears that  the currently attached vehicle is  likely  to  be  sold at a throw away price (unless that other motor vehicle was in  such dilapidated condition that it  could not  fetch much. The annexed proclamation form is not very clear, but it seems to be from the faint entries that the value given for that motor vehicle is 120,000/=.  If that sale by auction was to be realised, and the applicant eventually succeeds in her appeal, then she will have lost   substantially. I  say so because once the motor vehicle changes hands,  perhaps at best _she'd only   get  a refund of what it  was  sold  for, and not  the  true value of the  motor vehicle. Even if she was to  attach a value, it  would involve  a long unwinding process of  tracing the motor vehicle, whose  value  may have depreciated  once it  got  a new  owner, and perhaps create further litigation. (2) If another motor vehicle has already been sold, in execution of the same decree, then substantial loss referred to by the applicant is palpable. The continued retention of the motor vehicle by the auctioneer only attracts more expenses.

As regards security for due performance, I do not think the  money realised from the  sale of another motor vehicle - which sale the  details are  not  clear, can be  treated as security for  due   performance. The applicant  has satisfied this  court  that  it   is  desirable  to   stay  the execution pending hearing  of  the   appeal, and  that  the motor vehicle be  released to  the  applicant on  condition that:-

(a) He deposits half the decretal sum in court within 30 days hereof.

(b) He deposits the motor vehicle log book in court.

(c) The Auctioneer costs should abide the outcome of the  appeal as in  my  view  the  loser in  the appeal ought to bear the  costs of the  auctioneer.

(d) Costs of this application shall be in cause.

Delivered and dated this 7th day of October 2014 at Nakuru.

H. A. OMONDI

JUDGE