Muli v Manyasi & another [2022] KEHC 17063 (KLR)

Muli v Manyasi & another (Civil Appeal E239 of 2021) [2022] KEHC 17063 (KLR) (15 July 2022) (Ruling)

Neutral citation: [2022] KEHC 17063 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E239 of 2021

MN Mwangi, J

July 15, 2022

Between

Peterson Mutinda Muli

Appellant

and

Abraham Wekesa Manyasi

1st Respondent

Sure Auctioneers

2nd Respondent

Ruling

1. The application before me is a notice of motion dated February 2, 2022 brought under the provisions of sections 1A, 1B and 3A of the Civil Procedure Act, order 40 rules 1 & 2, order 2 rule 6, order 51 of the Civil Procedure Rules, articles 48 and 159(2)(d) of the Constitution and all other enabling provisions of the law. The appellant/applicant seeks the following orders-1. Spent;2. Spent;3. That there be an interim stay of execution of the decree dated October 15, 2021 related to Mombasa Magistrate’s civil suit No E182 of 2020 restraining the 1st and 2nd respondents from attaching and selling motor vehicle registration number KCG 198D and or any other property belonging to the applicant pending the hearing and determination of civil appeal No E239 of 2021;4. That the court be pleased to consolidate this application with the appellant’s notice of motion dated December 10, 2021 which is slated for hearing on the March 2, 2022 and or issue further directions thereof; and5. That the costs of this application be in the cause.

2. The application is brought on the grounds on the face of it and is supported by an affidavit sworn on February 2, 2020 by Peterson Mutinda Muli, the appellant/applicant herein.

3. In opposition to the said application, the 1st respondent Abraham Wekesa Manyasi, filed a replying affidavit sworn on March 25, 2022, whereas the 2nd respondent Sure Auctioneers filed a replying affidavit sworn on even date by Benard Gichuki, a licensed Class B Auctioneer trading in the name and style of Sure Auctioneers.

4. On February 11, 2022, the applicant filed another notice of motion application of even date brought under the provisions of sections 1A, 1B, & 3A of the Civil Procedure Act, order 40 rules 1 & 2, order 2 rule 6 and order 51 of the Civil Procedure Rules, and all other enabling provisions of the law. The applicant seeks the following orders-1. Spent;2. That the honourable court be pleased to order unconditional immediate release of motor vehicle registration number KCG 198D to the applicant pending the hearing and determination of this application;3. That the 2nd respondent be cited for contempt of court;4. Any other orders/directions that the court deems fit and just; and5. That the costs of this application be in the cause.

5. The application is premised on the grounds on the face of it and an affidavit sworn on February 11, 2022 by Peterson Mutinda Muli, the applicant herein. In opposition to the said application, the 2nd respondent filed a replying affidavit sworn on February 28, 2022 by Bernard Gichuki.

6. The application herein was canvassed by way of written submissions. The appellant’s submissions were filed on March 22, 2022 and March 11, 2022 in respect to the applications dated February 2, 2022 and February 11, 2022, respectively, by the law firm of Kihoro & Co Advocates. The respondents’ submissions on the other hand were filed on April 14, 2022 and March 16, 2022 in respect to the applications dated February 2, 2022 and March 11, 2022 respectively, by the law firm of Waithera Ngigi & Company Advocates.

7. Ms Kihoro, learned counsel for the applicant submitted that the 1st respondent filed a suit against the applicant being Mombasa CMCC No E182 of 2020 Abraham Wekesa Manyasi v Peterson Mutinda Muli following a road traffic accident alleged to have occurred on August 3, 2020. That the matter was heard ex parte after the applicant failed to enter appearance and default judgment was rendered on September 14, 2022 (sic) awarding the 1st respondent Kshs 750,000. 00 in general damages plus costs and interest.

8. She further submitted that the applicant sought to set aside the interlocutory judgment by filing an application dated November 28, 2021 which was dismissed by the trial court on December 9, 2021. Ms. Kihoro submitted that the applicant being aggrieved by the ruling dated December 9, 2021, filed a memorandum of appeal on December 14, 2021 seeking to overturn the said decision and sought a prayer to defend the primary suit on merits.

9. Ms Kihoro stated that in the application dated December 10, 2021, the applicant sought stay of execution and that in the application dated 2nd February, 2022, he sought the same prayers as in the application dated 10th December, 2021 necessitated by the precarious position the applicant had been subjected to after the illegal and unprocedural attempt by the 1st respondent to execute against the applicant’s movable property. She relied on the case of Arun C. Sharma v Ashana Raikundalia t/a Raikundalia & Co Advocates & 2 others [2014] eKLR and submitted that the applicant herein has expressed willingness to deposit half the decretal sum in a joint interest earning account as security so that the appeal can be heard on merits.

10. In submitting that stay of execution pending appeal is a discretionary power which should not be exercised in a way that prevents an appeal, the applicant’s Counsel relied on the case of Butt v Rent Restriction Tribunal [1979] eKLR. She further submitted that the main factor for consideration is whether the applicant has an arguable appeal with a great chance of success and if the applicant has demonstrated that if the order for stay or injunction is not granted, the intended appeal will be rendered nugatory. She relied on the case of Stanley Kang’ethe Kinyanjui v Tony Keter & 5 others, [2013] eKLR, where the Court considered what constitutes an arguable ground of appeal.

11. Ms Kihoro submitted that the applicant filed his Memorandum of Appeal on 14th December, 2021 which raises triable issues including but not limited to the applicant’s right to be heard, the Trial Court’s indiscretion and misdirection in respect to applying the principles for setting aside interlocutory judgment, thus occasioning a miscarriage of justice to the detriment of the applicant. While relying on the provisions of Order 42 Rule 6 of the Civil Procedure Rules, 2010, she submitted that the Court must satisfy itself that substantial loss may result to the applicant unless the order for stay is granted, that the application has been made without unreasonable delay, and such security for the due performance of the decree or order as may be binding on the appellant has been given.

12. On the issue of substantial loss, she referred to the case of James Wangalwa & another v Agnes Naliaka Cheseto [2012] eKLR and submitted that the applicant had demonstrated that the respondent had already taken out warrants of execution and had subsequently initiated a second attempt at execution by detaining, and intending to sell motor vehicle registration No. KCG 198D, in an attempt to satisfy the requirement of the judgment entered on the 14th September, 2021. She stated that if execution was to proceed, the applicant would be unable to be heard on appeal and the same would be overtaken by events.

13. In respect to the application filed on 11th March, 2022, Ms. Kihoro submitted that the application dated 11th February, 2022 was filed under extenuating circumstances after the respondents refused to obey Court orders issued on 4th February, 2022 directing that there be an interim stay of execution of the decree dated 15th October,2021 related to Mombasa Magistrate’s Court Civil Suit No. E182 of 2020. She further submitted that on 1st February, 2022, the 2nd respondent under the 1st respondent’s instructions detained the applicant’s motor vehicle registration number KCG 198D and issued a notification of sale of property against the said vehicle. She contended that the 2nd respondent intended to sell the subject motor vehicle unprocedurally without adherence to the proper guidelines set out in the Auctioneers Rules.

14. Ms. Kihoro stated that the 2nd respondent suggested that he could only release the subject motor vehicle upon receipt of orders for release of the same from this Honourable Court. She relied on the provisions of Section 2(3) of the Auctioneers Act as well as Rule 12 of the Auctioneers Practice Rules. She indicated that the latter outline the procedure for attachment of movable property in execution of a decree. She contended that the 2nd respondent never adhered to the guidelines provided therein in his capacity as a licensed Auctioneer.

15. She further contended that no Form 2 for proclamation for sale was served upon the applicant, who was only served with a notification of sale of property which did not give the owner seven days’ notice of sale and it omitted the date, time and place where the said auction was to be conducted. She stated that there was no regular attachment of the said motor vehicle and the process/event of ‘attachment’ was void ab initio for want of adherence to the laid down provisions.

16. Ms. Kihoro relied on the case of Equity Bank Ltd v Hellen Wanjiku Njihia [2016] eKLR, where the Court held that for one to succeed in enforcing contempt proceedings, the said order ought to be served. She submitted that the Court order issued on 4th February, 2022 was served upon the 2nd respondent on the same day. She stated that the 2nd respondent in its replying affidavit did not demonstrate evidence of instruction letters, letter of proclamation and/or Court warrants. She contended that with the attachment being void ab initio, the 2nd respondent ought to have complied with the Court orders by refraining from detaining the subject motor vehicle.

17. Ms. Ngigi, learned Counsel for the respondents submitted that it is noteworthy that the application dated 2nd February, 2022 seeks a stay of execution of the decree of the lower Court, and there is also pending in Court a Notice of Motion application filed by the applicant dated 10th December, 2021 in which he seeks a temporary injunction restraining the respondent from executing the decree of the lower Court pending appeal. She pointed out that the applicant has commenced two processes asking for similar interlocutory reliefs with regard to the same issues. She submitted that the applicant has neither abandoned nor withdrawn the application dated 10th December, 2021 thus the application dated 2nd February, 2022 is sub judice and offends the mandatory provisions of Order 6 of the Civil Procedure Rules.

18. She submitted that the appeal herein is against the ruling of the lower Court dated 9th December, 2021 and not against the judgment delivered on 19th September, 2021. She submitted that a stay of execution is only granted from the order or decree appealed from and when such an order is a positive order. She relied on the case of Douglas Oribu Matoke v William Sagini Oribu [2022] eKLR, where the Court cited the decision in Co-operative Bank Limited v Banking Insurance and Finance Union Kenya [2015] eKLR, in which Kantai. JA held that an order for stay of execution cannot be issued in respect of a negative order.

19. Ms. Ngigi also relied on the case of Municipal Council of Kisumu v Kenya Power & Lighting Company Limited [2017] eKLR, where the Court in dismissing an application for stay of execution held that an order for stay of execution pending appeal cannot be granted if the intended appeal is not against the order sought to be stayed. She stated that in the circumstances, the applicant cannot be granted an order for stay of execution of the judgment/decree of the lower Court.

20. She relied on the provisions of Order 42 Rule 6(2) of the Civil Procedure Rules and submitted that the applicant has not met the conditions for grant of stay of execution pending appeal.

21. On the issue of whether the applicant will suffer substantial loss, she stated that he had not demonstrated or expounded on the nature of the substantial loss that he is likely to suffer if an order for stay of execution is not granted. In citing the case of Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] eKLR, Ms. Ngigi contended that granting the applicant an order for stay of execution would mean denying the 1st respondent who is a successful litigant the fruits of his judgment, which should not be the case if the applicant has not given sufficient cause to enable this Court to exercise its discretion in granting the order for stay. She contended that it is not enough for the applicant to claim that he would suffer loss if he pays the decretal sum because it is substantial. She stated that the applicant had not raised any doubt that the 1st respondent would be able to refund the decretal sum in case the appeal succeeds, hence the 1st respondent did not bear the burden to prove his means.

22. On the issue of security for the due performance of the decree, Ms. Ngigi submitted that despite the fact that the applicant had shown willingness to furnish security for the due performance of the decree, he had failed to show what substantial loss he would suffer if the decretal sum was paid to the 1st respondent. She indicated that the applicant had not demonstrated that the 1st respondent would not be able to refund the decretal sum. She was of the view that depositing part of the decretal sum in a joint account would serve no purpose.

23. On the issue of whether the appellant has an arguable appeal, Ms Ngigi was of the view that in the application herein, the applicant had not demonstrated that the lower Court’s finding dismissing his application to set aside the exparte judgment entered on 14th September, 2021 was made in error or that the Trial Magistrate exercised his discretion improperly.

24. On the issue of whether the 2nd respondent carried out a lawful attachment, Ms. Ngigi submitted that the applicant was served with a proclamation notice and thereafter a notice of sale hence there was no illegality that was committed by the respondents herein.

25. In respect to the application filed on 11th March, 2022, Ms. Ngigi submitted that the subject motor vehicle registration No. KCG 198D was attached by the 2nd respondent on 1st February, 2022 in execution of the decree passed in the Magistrate’s Court Civil Case No. E182 of 2020. She indicated that the 2nd respondent admitted to having been served with a Court order issued on 4th February, 2022. She submitted that before the Court can find a party to be in contempt of Court orders, the citee must meet all the conditions necessary for an order of committal for contempt.

26. It was submitted by Ms. Ngigi that the applicant must prove that the terms of the Court order were clear and unambiguous, that the 2nd respondent was aware of the Court order in issue and he proceeded to willfully disobey the said Court order. She submitted that the terms of the order issued on 4th February, 2022 are clear and that the act complained of is that after service of the Court order, the 2nd respondent refused and/or declined to release the subject motor vehicle in breach of the terms of the Court order.

27. Ms Ngigi further submitted that the order issued on 4th February, 2022 did not direct the 2nd respondent to release the motor vehicle to the applicant and as such, he cannot claim that the 2nd respondent violated the terms of the Court order by failing to release the motor vehicle. She stated that the prayer for release of the motor vehicle in issue cannot be granted in a contempt application, and in any event, the said prayer was spent as the applicant sought it in the interim, pending the hearing and determination of the application.

Analysis and Determination 28. I have considered the applications filed herein, the affidavits filed in support thereof, the replying affidavits by the respondents as well as the written submissions by Counsel for the parties. The issues that arise for determination are-1. Whether the application dated 2nd February, 2022 should be consolidated with the application dated 10th December, 2021;2. Whether the application for stay of execution is incompetent as there is no appeal against the judgment and decree sought to be executed;3. Whether the 2nd respondent is in contempt of Court; and4. Whether motor vehicle registration No KCG 198D should be unconditionally released to the applicant.

29. The applicant in his affidavit in support of the application dated 2nd February, 2022 deposed that he filed a Memorandum of Appeal dated 10th December, 2021 accompanied with an application of even date seeking a temporary injunction/stay of execution of the decree dated 15th October, 2021 and that he has been subjected to intriguing harassment by the 1st and 2nd respondents. He stated that on 1st February, 2022, the 2nd respondent on the instructions of the 1st respondent forcefully detained the subject motor vehicle and issued a notification of sale the said vehicle which acts are illegal and against the statutory guidelines under the Auctioneers Rules 1997. He further stated that he is ready to deposit half the decretal sum in Court or in a joint interest earning account as security, in order for the appeal to be heard on merits.

30. In opposition to the application dated 2nd February, 2022, the 1st respondent deposed that the appeal herein is against the ruling of the lower Court in which the appellant’s application to set aside judgment was dismissed, therefore, an order for stay of execution cannot issue since the main decree/judgment is not the subject of the appeal herein. It was stated by the 1st respondent that on 16th December, 2021, the applicant was served with a proclamation notice with an inventory of the attached goods and on 1st February, 2022, he was served with a notification of sale of the attached subject motor vehicle. Therefore, the attachment of the subject motor vehicle was lawful and/or procedural.

31. The 2nd respondent on the other hand deposed that he was instructed by the 1st respondent through his Advocates on record, to carry out an attachment of the applicant’s assets pursuant to the Court’s decree dated 15th October, 2021. He stated that on 16th December, 2021 he visited the applicant’s house which is an apartment located at Magongo, Bomu Hospital area and attached his household goods and a motor vehicle registration No. KCG 198D but the applicant declined to sign a copy of the proclamation notice.

32. The 2nd respondent further stated that the applicant failed to pay the decretal sum within the time stipulated hence he proceeded to remove from his custody the attached motor vehicle and served him with a notification of sale of the subject motor vehicle. He deposed that he carried out the attachment of the subject motor vehicle in a lawful and/or procedural manner.

33. The applicant in his affidavit in support of the application dated 11th February, 2022 deposed that on 4th February, 2022, this Court issued orders for stay of execution restricting the respondents from attaching and selling the subject motor vehicle and/or any other property belonging to the applicant, which order was served upon the 2nd respondent. The applicant contended that the 2nd respondent has declined to release the subject motor vehicle citing that the said order does not direct him to release it.

34. It was stated by the applicant that the 2nd respondent has detained the subject motor vehicle in an unknown location. He further stated that he uses the said vehicle for transport business and he is currently incapacitated from partaking in any gainful economic enterprise due to the continuous detainment of the motor vehicle. The applicant contended that the said motor vehicle has not been applied as security in any of the proceedings thus detaining the motor vehicle serves no judicial purpose and exhibits the 2nd respondent’s contempt to the orders of this Court.

35. In opposition to the application dated 11th February, 2022, the 2nd respondent deposed that he was served with the Court order issued on 4th February, 2022 but by that time he had already removed the subject motor vehicle from the applicant’s custody on 1st February, 2022. He further deposed that the said order did not contain an order for release or restitution of the subject motor vehicle to the applicant thus he continued to detain the subject motor vehicle at Matraz Moves Yard, Changamwe. The 2nd respondent deposed that he had not sold the subject motor vehicle as a result of the Court order issued on 4th February, 2022 hence he had not disobeyed the orders of this Court.

Whether the application dated 2nd February, 2022 should be consolidated with the application dated 10th December, 2021. 36. It is the respondents’ contention that the application dated 2nd February, 2022 is sub judice the application dated 10th December, 2021. Section 6 of the Civil Procedure Act provides as hereunder on the doctrine of sub judice: -“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”

37. When dealing with the issue of sub judice, the Court in Kampala High Court Civil Suit No. 450 of 1993 - Nyanza Garage vs. Attorney General held as follows-“In the interest of parties and the system of administration of justice, multiplicity of suits between the same parties and over the same subject matter is to be avoided. It is in the interest of the parties because the parties are kept at a minimum both in terms of time and money spent on a matter that could be resolved in one suit. Secondly, a multiplicity of suits clogs the wheels of justice, holding up resources that would be available to fresh matters, and creating and or adding to the backlog of cases courts have to deal with. Parties would be well advised to avoid a multiplicity of suits.”

38. It therefore follows that for the doctrine of sub judice to apply, it should entail the same parties litigating over a similar subject matter, in various suits and in different or in the same Court. In the applications before this Court, the one dated 2nd February, 2022 seeks stay of execution and the one dated 10th December, 2021 seeks an interim injunction. The contention by the applicant that the doctrine of sub judice applies herein fails on the ground that the two applications seek different orders.

39. On the request by the applicant for consolidation of the two applications, this Court’s view is that it will not be in the interest of justice to consolidate them as the application dated 2nd February, 2022 has already been heard, and the outcome of this ruling shall compromise the application dated 10th December, 2021. I however hasten to add that it is an abuse of the Court process to file two applications in one file, seeking orders whose end result would be the same. In this instance the effect of allowing the applications dated 2nd February, 2022 and 10th December, 2021 would be to stay the orders of the lower Court.

Whether the application for stay of execution is incompetent as there is no appeal against the judgment and decree sought to be executed. 40. The principles for granting stay of execution pending appeal are provided under Order 42 Rule 6(1) & (2) of the Civil Procedure Rules, 2010 which states as hereunder-“1)No appeal or second appeal shall operate as a stay of a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.1. No order for stay of execution shall be made under sub-rule (1) 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; andb.such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”

41. The applicant herein has not appealed against the judgment and decree of 14th September, 2021, which forms the subject of execution. The appeal filed before this Court is in respect to a ruling that was delivered on 9th December, 2021, dismissing the applicant’s application seeking to set aside the interlocutory judgment entered on 14th September, 2021. This can be discerned from the Memorandum of Appeal dated 10th December, 2021.

42. It is the respondents’ contention that a stay of execution is only granted from an order and/or decree appealed from and only in instances where the order in issue, is a positive order. Having read the ruling dated 9th December, 2021, it is evident that dismissal of the application did not result in any positive order capable of being stayed. In the case of Western College of Arts and Applied Sciences v Oranga [1976] KLR 63, 66 the Court of Appeal when addressing a similar issue made the following observation-“In the instant case the High Court has not ordered any of the parties to do anything, or refrain from doing anything or to pay any sum. There is nothing arising out of the High Court judgment for this court, in an application for a stay, to enforce or restrain by injunction.”

43. Makhandia J (as he then was) in Raymond M Omboga vs. Austine Pyan Maranga Kisii HCCA No. 15 of 2010 (UR) held that:“It is trite law that stay of execution pending appeal can only be granted against the order being appealed against. Put differently, an order for stay of execution pending appeal cannot be granted if the intended appeal is not against the order sought to be stayed; yet this is what obtains in this application where the applicant’s appeal is against the order of dismissal of his application, yet the stay sought is against the subordinate court’s judgement or decree.” (emphasis added).

44. It is worth noting that the application dated 2nd February, 2022 has been brought under the wrong provisions of the law since it has been brought under the provisions of Order 40 Rules 1 and 2 of the Civil Procedure Rules, 2010. Be that as it may, this Court does not have the power to grant an order for stay of execution of the judgment and resultant decree dated 14th September, 2021, mainly because there is a regular judgment on record which has not been set aside or challenged by way of an appeal. It is my finding that the application for stay of execution herein is incompetent.

45. Having made the said finding, this Court shall not to examine issues of whether the applicant has established a case to warrant the grant of an order for stay of execution pending appeal, as that would amount to an academic exercise.

Whether the 2nd respondent is in Contempt of Court. 46. The applicant contended that the 2nd respondent is in contempt of Court on grounds that he was served with a Court order issued on 4th February, 2022 restraining him from attaching and selling motor vehicle registration number KCG 198D and/or any other property belonging to the applicant pending the hearing and determination of the application herein, but the 2nd respondent has refused to comply with the said order by forcefully detaining the subject motor vehicle.

47. The 2nd respondent on the other hand admitted that he was served with the said order but by the time he was served with the same, he had already attached the suit motor vehicle. He averred that the Court order issued on 4th February, 2022 does not contain a release order and/or clause hence he is not in contempt of Court.

48. Contempt of Court is in the nature of criminal proceedings therefore, proof of a case against a contemnor is higher than that of a balance of probability since liberty of the subject is at stake. This was aptly stated in Gatharia K. Mutikika v Baharini Farm Limited [1985] KLR227, as here below-“A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be proved satisfactorily…. It must be higher than proof on a balance of probabilities, almost but not exactly, beyond reasonable doubt. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit criminal cases. It is not safe to extend it to offences which can be said to be quasi-criminal in nature.However, the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge… Recourse ought not to be had to process of contempt of court in aid of a civil remedy where there is any other method of doing justice. The jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched and exercised with the greatest reluctance and the greatest anxiety on the party of the judge to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject… applying the test that the standard of proof should be consistent with the gravity of the alleged contempt… it is competent for the court where contempt is alleged to or has been committed, and or an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestration, whether the offender is a party to the proceedings or not.”

49. Due to the gravity of consequences that ordinarily flow from contempt proceedings, it is a requirement for the order be served unless the person cited for contempt had personal knowledge of that order such as by being present in Court when the order was read out. In this case, it is not in dispute that the 2nd respondent was served with the Court order that was issued on 4th February, 2022. It is also not in dispute that the 2nd respondent attached the subject motor vehicle on 1st February, 2022 which necessitated the filing of the application dated 2nd February, 2022. It is therefore evident that by the time the application dated 2nd February, 2022 was filed and the interim orders granted, the 2nd respondent had already attached the subject motor vehicle, thus the order restricting him from attaching the said vehicle had been overtaken by events.

50. A perusal of the Court Order of 4th February, 2022 reveals that it did not contain an order for release of motor vehicle registration No. KCG 198D. There was nothing in the said order compelling the 2nd respondent to release the said motor vehicle to the applicant herein. It is my finding that the 2nd respondent herein is not in contempt of any Court orders.

Whether motor vehicle registration No. KCG 198D should be unconditionally released to the applicant. 51. The applicant averred that the subject motor vehicle was irregularly attached since he was only served with a notification of sale of property issued on 1st February, 2022. On the other hand, the 2nd respondent in his replying affidavit to the application dated 2nd December, 2022 deposed that after receipt of instructions, he attached the applicant’s household goods and motor vehicle registration No. KCG 198D on 16th December, 2021 when he visited the applicant’s house in an apartment located at Magongo, Bomu Hospital area, but the applicant declined to sign a copy of the proclamation notice. The 2nd respondent also deposed that since the applicant failed to pay the decretal sum within the time stipulated, he proceeded to remove from the applicant’s custody the suit motor vehicle and served him with a notification of sale of the said motor vehicle.

52. The procedure for attachment of movable property in execution of a decree is provided under Rule 12 of the Auctioneers Practice Rules, 1997 as follows-“(1)Upon receipt of a court warrant or letter of instruction the auctioneer shall in case of movables other than goods of a perishable nature and livestock:a.record the court warrant or letter of instruction in the register.b.Prepare a proclamation in Sale Form 2 of the schedule indicating the value of specific items and condition of each item, such inventory to be signed by the owner of the goods or an adult person residing or working at the premises where the goods are attached or repossessed, and where any person refuses to sign such inventory auctioneer shall sign a certificate to that effect.c.In writing give to the owner of the goods seven days’ notice on Sale Form 3 of the schedule within which the owner may redeem the goods by payment of the amount set forth in the court warrant or letter of instruction.d.On expiry of notice without payment and if goods are not to be sold in situ remove the goods to safe premises for auction.e.Ensure safe storage of the goods pending their auction.f.Arrange advertisement within seven days from date of removal of the goods and arrange sale not earlier than seven days after first newspaper advertisement and not later than fourteen days thereafter.g.Not remove any goods under the proclamation until the expiry of the grace period.”

53. The prescribed Sale Form 2 referred to hereinabove is headed proclamation of attachment/repossession/distraint of movable property. The one attached to the 2nd respondent’s replying affidavit sworn on 25th March, 2022, is a proclamation notice dated 16th December, 2021. A perusal of the same reveals that it notified the applicant among other things, that the movable goods described thereon had been attached and left in his custody for 7 days. The 2nd respondent deposed that there was also a notification of sale dated 1st December, 2022 which the applicant admitted to have been served with.

54. In light of the foregoing, it is my finding that the 2nd respondent duly followed the procedure laid down under Rule 12 of the Auctioneers Practice Rules, 1997. Consequently, it is my finding that motor vehicle registration number KCG 198D was regularly attached. In view of the above finding, the applicant has not established a case to warrant this Court to issue an order for unconditional release of the suit motor vehicle to him.

55. The upshot is that the applications dated 2nd February, 2022 and 11th February, 2022 are devoid of merit. They are herein dismissed with costs to the respondents.

It is so ordered.DATED, SIGNED AND DELIVERED AT MOMBASA ON THIS 15TH DAY OF JULY, 2022. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of:Ms Kihoro for the applicantMs Murage h/b for Ms Ngigi for the respondentsMr. Oliver Musundi – Court Assistant.