[2021] KECPT 558 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.209 OF 2019

BENSON MWENDA NG’ANG’A..........................................................CLAIMANT

VERSUS

FORWARD TRAVELLERS SACCO LIMITED .........................1ST RESPONDENT

J.K. MUCHENDU T/A ICON AUCITONEERS..........................2ND RESPONDENT

RULING

Vide the Application dated 7. 2.2020, the Claimant has moved this Tribunal seeking for Orders inter alia:

1. Spent;

2. That this Honourable Tribunal be pleased to lift the attachment of the Claimant’s good namely Motor vehicle Registration Number KBS 037 D and KCL 088A proclaimed by Icon Auctioneers on 6. 2.2020;

3. Spent;

4. Spent.

The Application is supported by the grounds on its face and the Affidavit sworn by himself on 7. 2.2020.

The Respondents have opposed the Application vide the Replying Affidavit sworn by George Njoroge Mugo on 16. 3.2020.

Vide the directions given on 19. 11. 2020, the Application was canvassed by way of written submissions. The Claimant filed his submissions on 15. 9.2020 while the Respondent did so on 18. 11. 2020.

Claimant’s Contention

It is the Claimant’s case that the 2nd Respondent has proclaimed his motor vehicles Registration Number KBS 037D and KCL 088A without complying with the provisions of Rules 11 and 12 of Auctioneers Rules. That it has attached the said motor vehicle without attaching a value of them. That motor vehicle registration number KCL 088 A is valued at Kshs.4. 5Million while KBS 037D is valued at Kshs. 1. 8 Million.

That the dispute between the Claimant and the 1st Respondent as regards Motor vehicle KBS 037D is whether the Same belongs to a third party. That the said dispute await determination in CM.CC.NO.6435/19. That motor vehicle registration Number KCL 088A is subject to Tribunal case no. 559/17.

Respondent’ s case

The Respondents have opposed the Application on grounds that the Tribunal dismissed the Claimant’s statement of claim on 22. 8.2019. That the Claimant did not Appeal the said decision. That they are not aware of the Application dated 7. 10. 2019. That the Tribunal became function officio when it dismissed the claim and they has no business hearing the alleged application dated 11. 10. 2019. That the allegation that the value of the said motor vehicle was not disclosed is not a bar to attachment. That the suit pending at the Chief Magistrate court and the Tribunal have no hearing in this matter. That the Respondent is entitled to the fruits of its judgment.

Issues for determination

We have framed the following issues for determination :

a. Whether the Claimant has laid a proper basis to warrant the release of motor vehicle registration numbers KBS 037D and KCL 088A;

b. Who should meet the costs of the Application?

Release of motor vehicle

The Claimant has prayed for an Order of release of his attached motor vehicles. His basis for seeking the Application principally on the ground that the 2nd Respondent did not comply with Rules 11 and 12 of the Auctioneers Rules in that the said motor vehicle were not valued. That motor vehicle Registration number KCL 088A is the subject matter of Tribunal case No. 559/17while motor vehicle registration number KBS O37D is subject to proceedings in CM.CC.NO. 6435/19. That the attachment of the said motor vehicle is only meant to defeat the case of justice in the two suits.

On its part, the Respondents contend that it has followed due process in attaching the said motor vehicles and that there is no order staying the execution of the certificate of costs issued by the Tribunal in this matter. That it is not privy to the suits referred to by the Claimant.

We have perused the proceedings herein, we note that the instant claim was dismissed for want of jurisdiction with costs on 22. 8.19 subsequently. A decree embodying costs of Kshs.46,530/- was extracted. Further, a warrant of attachment and sale of moveable property dated 30. 1.2020 was issued. This warrant is the subject matter of these proceedings. Whilst executing the warrant, the 2nd Respondent proclaimed and attached the Respondent’s motor vehicles registration numbers KBS 037D and KCL 088A. The Claimant has objected to the attachment of the said motor vehicles on this grounds namely; that no valuation was done and secondly, that the said motor vehicles were subject of proceedings in other suits. We will address these issues thematically as follows:-

Valuations

Rule 11(i( (a) (IV) of the Auctioneers Rules provides thus:

“11 (I) (a) (iv) A Court warrant or letter of instruction shall, include, in the case of (a) a moveable property;

(IV) where appropriate, reserve prices or where there are to be no reserve prices, a record of the reasons for not selling subject to reserve prices”

Rule 12 (I) (b) of the said Rule provide thus:

“ 12 (1) upon receipt of a court warrant... the auctioneers shall...

(b) prepare a proclamation in sale form 2 of the schedule indicating the value of specific items and the condition of each item, such inventory to be signed by the owner of the good....”

What we gather from these Rules is that before an auctioneer attaches the goods of a judgment Debtor, he/she should indicate the value of each of the movable property so proclaimed. The question arises as to whether this happened in the present case. We have perused the proclamation Notice produced by the Claimant. We note that the value of the motor vehicle the subject matter of this Application are not indicated. This therefore mean that the Respondent did not comply with the provisions of Rule 11 and 12 above.

Existence of other suits

The Claimant has advanced an argument that the 2nd Respondent is estopped from proclaiming the said motor vehicles as they are the subject matter of proceedings in CMCC.NO. 6435/19 and CC.NO. 559/17. The Respondents have opposed the argument on the ground that the said suits are not relevant and/or recalled to the proceedings. Whilst the status of CTC.NO. 559/17 has not been disclosed, we have perused annexture BMN-2 and note that proceedings in CMCC.NO.6435/19 relate to injunctive proceedings against the Respondent. As the Respondent contends, these suits do not have a bearing or the matters the subject of the warrants of attachment in this claim. As such, the mere fact they exist does not oust the jurisdiction of Tribunal to execute processes in the current claim.

Conclusion

The upshot of the foregoing is that the Application partially succeed to the extent that the 2nd Respondent did not disclose the value of motor vehicle registration number KBS 037D and KCL 088A in the proclamation Notice. We accordingly set aside the proclamation Notice and direct the Respondents to issue the Claimant with a fresh proclamation that complies with Rule 11 (1) (a) (VI) and 12 1 (b) of the Auctioneer Rules. No orders as to costs.

Ruling signed, dated and delivered virtually this 25th day of March, 2021.

Hon. B. Kimemia Chairperson Signed 25. 3.2021

Hon. J. Mwatsama Deputy Chairperson Signed 25. 3.2021

B. Akusala Member Signed 25. 3.2021

Miss Gikonyo holding brief for Mr. Thuita for Respondent.

Application dated 7. 2.2020.

Hon. B. Kimemia Chairperson Signed 25. 3.2021