[2021] KEELC 4572 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KERICHO

ELC No. 37 OF 2014

CHARLES LANGAT.......................................................................................PLAINTIFF

VERSUS

MUKESH KUMAR KANTHILAL PATEL..................DEFENDANT/RESPONDENT

AND

PARESHKUMAR KANTIBHAI PATEL........................1st OBJECTOR /APPLICANT

AKSHAR GENERAL ENTERPRISES LTD.................2nd OBJECTOR /APPLICANT

RULING

1. Before me for determination are the Notices of Motion dated 18th December 2019 brought under Order 22 Rule 51(1) & (2) of the Civil Procedure Rules, Sections 1A, 1B & 3A of the Civil Procedure Act, and all other enabling provisions of the law where the Objectors seeks for Orders that the Plaintiff, his servants, agents or otherwise be restrained from attaching their properties and goods in particular the items proclaimed, being motor vehicles registration No. KBA 500W, KBL 424 Q, belonging to the 1st Objector and the assorted stock in trade together with all movable properties located within the said shop premises under the name of Akshar Enterprises Ltd located within Sotik town belonging to the 2nd Objector pending the determination of the Application. They also sought for costs.

2. The said application is premised on the grounds on its face as well as the supporting affidavit of Pareshkumar Kantibhai Patel the 1st Objector /Applicant, sworn on the 18th December 2019.

3. The second application is also a Notice of Motion dated the 16th January 2020 brought under the provisions of Order L Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, and all other enabling provisions of the law where the Plaintiff herein seeks for orders that the officer Commanding Sotik Police Station do provide security during the exercise against the Defendant /Respondent, and for costs of the application.

4. This application is premised on the grounds on its face as well as the supporting affidavit of Charles Langat the Plaintiff herein sworn on the 16th January 2020.

5. By consent, Counsel for the parties agreed to have the applications disposed of by way of written submissions wherein they filed their respective written submissions which I shall discuss as follows:

The Objector’s Submission.

6. The 1st Objector’s submission in relation to their Application dated the 18th December 2019 was that the entire execution process was flawed in that there had been no application applied for the execution by the Decree Holder prior to instructing the auctioneer to commence the purported execution process and further that there had been no warrants of attachment and/or warrants of sale that had been sought for and/or obtained from the Court.

7. That the provisions of Section 38 of the Civil Procedure Act and Order 22 Rule 6 (sic) made it mandatory for any party seeking to execute a decree to make an application to that effect.

8. That because the proclamation by M/s Hegeon Auctioneers was at the instance of the Plaintiff, the Auctioneers Rules and more so Rule II was clear in relation to the prescription of the nature of the Court warrant. Since in this case it was pursuant to Civil Appeal No. 105 of 2018, the only way the judgment could be enforced was by taking out the warrants to enforce the attachment of the judgment debtor’s goods, which in this case none had been applied for and issued by the Court.

9. That since the Court of Appeal had limited jurisdiction, where a successful party therefore sought to enforce a decree arising from the said Court, it was incumbent of the party to have the same transmitted to the Environment and Land Court for execution wherein the Deputy Registrar would then, on application by the Decree Holder, issue the necessary warrants. That in the present instance, this process was not done.

10. It was further their submission that since an Application of this nature was pegged on statutory time lines as provided for under Order 22 Rule 53 of the Civil Procedure Rules, the Decree Holder in this case had not served a notice of intention to proceed with the execution as was statutorily required.

11. That there had been an attempt by the Plaintiff to assert that the motor vehicle sale agreements were disputable however the provisions of Section 8 of the Traffic Act provided that:

‘The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle’.

12. The assertion by the Plaintiff therefore that the searches available disclosed the Defendant as the owner of the said motor vehicles was displaced by the sale agreements exhibited by the 1st Objector and further that there was no law that barred relatives from entering into a commercial transaction.

13. That there was no opposition in relation to the 2nd Objector and therefore there was no submission on the same. The 1st Objector sought for their Application to be allowed on merit.

14. In relation to the Plaintiff’s application dated the 16th January 2020, the Defendant/Respondent’s submission was that since the Plaintiff had, pursuant to the judgment delivered by the Court of Appeal in this matter, only sought for orders that the Officer Commanding Sotik Police Station provides security during the exercise against the Defendant /Respondent, the said application was bad in law, lacked merit, was irregular and should be dismissed for reasons that there were no express orders of eviction of the Defendant /Respondent herein in the event that vacant possession was not rendered. That eviction was a process that had to be sanctioned by the Court and not one to be carried at the whims of a party and therefore in essence it was not clear what exercise the Officer Commanding Sotik Police Station would carry out against the Defendant/Respondent.

Plaintiff’s Submission.

15. The Plaintiff’s submission on the Application dated the 18th December 2019 was that the 1st Objector herein was trying to mislead the Court that he had purchased and transferred the motor vehicles registration No. KBA 500W and KBL 424Q from the Defendant because a search at the National Transport and Safety Authority (NTSA) had confirmed that the Defendant was the registered owner of the said motor vehicles as at 15th January 2020 four months after the purported sale.

16. That the actions by the 1st Objector and the Defendant, who were related, was a deliberate and mischievous attempt to frustrate the Plaintiff from executing the orders of the Court of Appeal.

17. The Plaintiff relied on the decided Court of Appeal case in Thuranira Karauri vs Agnes Ncheche [195-1998] 1EA 57 to submit that in the absence of certificate of search signed by the Registrar of Motor Vehicle showing the registered owner of the vehicles and in the absence of a rebuttal from the Objector, the certificate of search was prima facie proof of ownership of the motor vehicles by the 1st Objector.

18. That they had extracted the Court of Appeal order after concurrence with the Respondent as to its terms and further that the Civil Procedure Act and Rules makes provision as to how to extract decrees and judgments of the High Court and so does Rule 33 and 36(1) of the Court of Appeal Rules.

19. That further Section 4 of the Appellate Jurisdiction Act was to the effect that Any judgment of the Court of Appeal given in exercise of its jurisdiction under this Act may be executed and enforced as if it were a judgment of the High Court.

20. Reliance was placed on the decided case in African Commuter Services Ltd vs Kenya Civil Aviation Authority & 2 Others [2014] eKLRto buttress their submissions.

21. In closing, the Plaintiff submitted that the only requirement he needed for execution was the Court of Appeal order and not the High Court decree as alleged by the Objectors and therefore the Objectors’ application was meant to frustrate him from enjoying the fruits of his judgment.

22. In support of his Application dated the 16th January 2020, the Plaintiff submitted that on the 3rd October 2019, pursuant to the Court of Appeal pronouncing itself in Civil Appeal No 105 of 2018, he had extracted the decree and instructed M/s Hegeon Auctioneers to execute the same by evicting the Defendant from the suit land being Sotik Township/667. The eviction was resisted and hence the Plaintiff sought the help of the Police who then demanded from him an order from the Court so as to assist him in the eviction process.

23. That it was thus based on the said refusal by the Police to assist him that he had sought for the aforementioned orders which he submitted were in order. He placed and reliance on the decided case in Stephen Wanjau Mwangi & 2 Others vs Patrick Tumuti Kimutwe [2019] eKLR.

Determination

24. I have considered the submissions by Counsel to the respective parties in respect to the above captioned applications. I have also considered, the supporting affidavits and the replying affidavits as well as authorities herein cited.

25. The genesis of the matter in question is that vide a Plaint dated 5th August 2014, the Plaintiff herein had filed suit against the Defendant/Respondent in this Court, seeking for the following orders in respect of a parcel No. Sotik Township/667;

a) An order of vacant possession

b) mesne profits

c) unpaid rent for 36 months from July, 2011 at the rate of Kshs. 50,000/- per month.

26. That the Court had delivered its judgment on the 6th July 2018 wherein the Plaintiff being dissatisfied with the decision, filed his Appeal before the Court of Appeal in Civil Appeal No 105 of 2018. The Court of Appeal had subsequently rendered its verdict on the 3rd day of October, 2019setting aside the trial Court’s judgment in its entirety and substituting it with an order allowing the suit as prayed in the Plaint.

27. The Plaintiff’s submission is that upon the pronouncement by the Court of Appeal, he had extracted the Court’s decree and instructed M/s Hegeon Auctioneers to execute the same by evicting the Defendant from the suit land being Sotik Township/667 but the exercise was thwarted by the Defendant herein which forced him to seek assistance of the Police who also sought form him a court order before they could affect the eviction which in essence was prayer (a) in his Plaint.

28. The main ground of the Objectors’ application is that since the proclamation by M/s Hegeon Auctioneers was pursuant to a decision from Court of Appeal in Civil Appeal No. 105 of 2018, the only way the judgment could be enforced was by taking out the warrants for attachment of the judgment debtor’s goods. That no such warrants had been applied for and issued by the Court.

29. I have considered the said reasoning herein and I am constrained to disagree with the same for reasons that upon perusal of the Court record, I find that indeed pursuant to the pronunciations of the Court of Appeal, the formal expression of the Court determining the rights of the Plaintiff was extracted in a decree dated the 7th March 2019, as provided for under the provisions of Rule 34(1) of the Court of Appeal Rules which decree in my humble opinion was executable.

30. Section 4 of the Appellate Jurisdiction Act provides as follows:

Any judgment of the Court of Appeal given in exercise of its jurisdiction under this Act may be executed and enforced as if it were a judgment of the High Court.

31. The 1st Objector has also raised the issue of the ownership of the proclaimed motor vehicles registration No. KBA 500W, KBL 424 Q, stating that the same belonged to him and not the Defendant/Respondent as evidenced by the sale agreements dated the 13th September 2019.

32. I have thus considered the sworn affidavit by the 1st Objector sworn on the 18th December 2019 in which he averred to having purchased the motor vehicles from the Defendant in September 2019. I note that save for the sale agreements of 13th September 2019, which were executed after the extraction of the Court of Appeal decree, there was no evidence produced by the 1st Objector to the effect that the subject motor vehicles were transferred to him for value and neither was there any evidence of a log book in his name. The agreement, I find, was a sham. I also find rather curiously that both the motor vehicles were sold to the 1st Objector, who also interestingly enough bears the same name as the Defendant, on the same day and which was after the pronouncement of the Court of Appeal.

33. It is also noteworthy that the search results at the National Transport and Safety Authority (NTSA) by the Plaintiff, indicate that the Defendant was the previous owner of the motor vehicles whereby since their registration, ownership had been with one person, but subsequently upon the pronouncement of the Court of Appeal, they had been transferred to the 1st Objector. This gives credence to the Plaintiff’s submission/averment that the vehicles were owned by the Defendant/Judgment Debtor before being transferred to the 1st Objector as a ploy to defeat the execution.

34. Given the chronology of events leading to the attachment of the subject properties and more so the motor vehicles registration No. KBA 500W, KBL 424 Q, there is no doubt in my mind that the subject motor vehicles were transferred to the 1st Objector, the Defendant having known that execution for the decretal sum herein was eminent. I find that there was a scheme to defeat the Plaintiff’s right to realize the fruits of his judgment and that this was not only an attempt to mislead the Honorable Court, but a clear manifestation of the fraud propagated by the Defendant and the 1st Objector .

35. It is was incumbent of the 1st Objector to produce evidence of the legal interest in the motor vehicles herein attached in execution of decree (see, Akiba Bank Ltd v. Jetha & Sons Ltd [2005] eKLR. Basically, therefore the burden of proof was on the 1st Objector to establish ownership (see also Chatabhai M. Patel & Another HCCC No. 544 Of 1957 (Lewis) On 8/12/58 HCU (1958) 743). I find that the 1st Objector has fallen short of proof of acquisition of motor vehicles registration numbers KBA 500W, KBL 424 Q, in good faith and for value and therefore the motor vehicles are available for attachment.

36. The transfer of the said motor vehicles, after the pronouncement of the Court of Appeal and just before the said attachment, was in my humble view aimed at defeating the Orders of the Court of Appeal. I find no merit in the application dated the 18th December 2019 and proceed to dismiss it in its entirety with costs.

37. On the Application by the Plaintiff dated the 16th January 2020, I find that the same, as well as Plaintiff’s submissions are detailed in a chronological manner as to the frustrations the Plaintiff has gone through to realize the fruits of his judgment more so where he sought vacant possession of the suit premises.

38. The application herein thus seeks the enforcement of the orders issued by the Court of Appeal on the 3rd October, 2019which orders I have already set out herein above. The Defendant/Respondent’s affidavit in response did not controvert the averments of the Plaintiff that he being the person in possession of the suit premises, had frustrated the Plaintiff from effecting the Court order, which order directed that the suit premises be in the hands and control of the Plaintiff. Indeed what the Defendant had done was to attack the contents in said application which attack in my view is misplaced.

39. There having been no stay of the Court of Appeal order of the 3rd October, 2019, it is trite that Court orders must be obeyed. The Court having been informed that the Defendant is not bent on ensuring compliance with the said orders to give vacant possession and since the Plaintiff herein seeks enforcement of what the Court of Appeal ordered which orders are binding to this court, I will not hesitate to issue orders that will ensure compliance, to this effect it is herein ordered as follows:

i. That M/s Hegeon Auctioneers with the assistance of the Officer Commanding Sotik Police Station are hereby ordered to give full effect to the orders of 3rd October, 2019

ii. That M/s Hegeon Auctioneers with the assistance of the Officer Commanding Sotik Police Station are hereby authorized to remove the Defendant herein who is in occupation of the premises comprised in the land parcel No. Sotik Township/667 (suit property) and ensure that possession is immediately given to the Plaintiff.

iii. That the above orders to be executed forthwith and any costs incurred be passed over to the Defendant.

iv. The Plaintiff shall have the costs of this application.

It is ordered

Dated and delivered at Kericho this 28th day of January 2021

M.C. OUNDO

ENVIRONMENT & LAND – JUDGE