VIPAN H. CHODA v BELLUR KRISHNASWAMY SPRINIVAS (ALIAS SUDHARSHAN BELLUR) & 2 Others [2011] KEHC 4019 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

COMMERCIAL & TAX DIVISION – MILIMANI

CIVIL CASE NO.694 OF 2010

VIPAN H. CHODA...................................................PLAINTIFF

VERSUS

BELLUR KRISHNASWAMY SPRINIVAS

(ALIAS SUDHARSHAN BELLUR)...............1ST DEFENDANT

BELLUR ENGINEERING LIMITED...........2ND DEFENDANT

ILA DEVANI....................................................3RD DEFENDANT

R U L I N G

The Applicant in the Notice of Motion dated 15th October, 2010, seeks orders of the court, inter alia, under Order XXX1X Rules 1 and 9 of the Civil Procedure Rules as follows;-

1. THAT the 3rd Respondent be compelled by a mandatory injunction to release the motor vehicle Registration Number KBL 810 F Toyota Prado (the motor vehicle) to the Applicant pending the hearing and determination of this Application.

2. THAT the 3rd Respondents be compelled by a mandatory injunction to release the motor vehicle to the Applicant pending the hearing and determination of this suit.

3. THAT the costs of this application be borne by the said Respondents in any event.

The Application is premised on 10 grounds as set out on the face thereof and supported by the Applicants’ Affidavit of 15th October, 2010.

The Applicant purchased the subject motor vehicle from one SOSPETER MUSYIMI MUTUKU as per a sale agreement dated 10th April 2010, (annexed to the Supporting Affidavit “VHC3”). She then appointed IMTHIYA Z. K. R. MAJID and JAMIL UMARBHAI DESAI as agents to sell the said motor vehicle for her.

The 1st Defendant/Respondent, representing himself as a director of the 2nd, approached the selling agents and entered into an agreement dated 29th July 2010, (annexture “VHC 4”), for the sale of the vehicle to the 2nd Respondent at a price of Kshs. 2,800,000/=. It was agreed that the purchase price would be paid in four instalments by way of post dated cheques for Kshs. 700,000/= which the 1st Defendant gave to the selling agents against the release of the motor vehicle and all related documentation. Upon presentation of the first cheque for payment the same was dishonoured for reasons that the 2nd Defendant did not have sufficient funds in its account. Copies of the cheques, including the dishonoured one are annexed to the supporting affidavit as annexture “VHC 6”.

The 2nd Respondent promised to pay the purchase price in cash and requested the Applicant not to bank the remaining cheques.   That was not to be. The Applicant later learnt that the 1st Respondent had been arrested in connection with a charge of obtaining money by false pretences, prompting her to report the matter to the police. Her vehicle was later traced with the 3rd Respondent who declined the Applicant’s request that she surrenders the motor vehicle to her. The Applicant’s position is that the sale of the motor vehicle to the 2nd Respondent failed for want of consideration and the 3rd Respondent has no right to retain the motor vehicle.

The 1st Respondent was served with the Chamber Summons on his own behalf and that of the 2nd Respondent at the Industrial Area Remand Prison as is evidenced by the Affidavit of Service filed herein. The 3rd Respondent was served through her advocates, whom she pointed out to the process server, as deponed in the said Affidavit of Service. No Replying Affidavit or Grounds of Opposition were filed to challenge the application and no-one attended court from the Respondents’ side. The application and all the depositions contained in the supporting affidavit therefore remain uncontested.

I am persuaded that the Applicant has established a prima facie case against all the Respondents and that special circumstances do exist for the granting of the orders sought for reasons that:-

1. The sale agreement dated 29th July 2010 stands vitiated for want of consideration.

2. In view of the above and the 3rd Respondent having not demonstrated any right of ownership or interest in the motor vehicle her possession of the same cannot be justified in law.

3. There is a real danger of the 3rd Respondent dealing with the motor vehicle in a manner that would occasion the Applicant irreparable loss with no likelihood of compensation in damages.

For the above reasons I allow the application and grant the prayers sought with costs to the Applicant.

DATED SIGNED and DELIVERED at NAIROBI this 9THday ofFEBRUARY, 2011.

M. G. MUGO

JUDGE

In the presence of:

Ms Ongeti holding brief for Mr. SimiyuFor the Applicant

Mr. MukeleFor the Respondents