[2019] KEHC 8145 (KLR)
The court held that once the warrants of attachment were set aside, the judgment debtor (applicant) could not be held liable for storage charges arising from the attachment. The auctioneer was found to have complied with the court's release orders, and any dispute regarding storage charges was to be resolved between...
Source-derived case information.
- Citation
- [2019] KEHC 8145 (KLR)
- Parties
- Applicant: Hatari Security Company Ltd; Respondent: Hamisi Charo; Respondent: Ndutumi Auctioneers
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 283 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Supervisory Jurisdiction Regarding Release of Attached Motor Vehicle and Liability for Storage Charges
- Outcome
- application dismissed; motor vehicle to be released to applicant; auctioneer discharged from contempt; no order as to costs; file closed
- Judges
- CA Otieno
- Legal Topics
- Execution of Decrees, Attachment of Property, Storage Charges Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hatari Security Company Ltd
Applicant
Hamisi Charo
Respondent
Ndutumi Auctioneers
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Supervisory Jurisdiction Regarding Release of Attached Motor Vehicle and Liability for Storage Charges
Legal Issues
- 1 Whether the judgment debtor is liable for storage charges after warrants of attachment have been set aside.
- 2 Whether the auctioneer complied with court orders for release of the attached motor vehicle.
- 3 Who is responsible for payment of storage charges incurred after the setting aside of the warrants.
Ratio Decidendi
The court held that once the warrants of attachment were set aside, the judgment debtor (applicant) could not be held liable for storage charges arising from the attachment. The auctioneer was found to have complied with the court's release orders, and any dispute regarding storage charges was to be resolved between the decree-holder and the yard owner, not the applicant. The auctioneer was discharged from contempt allegations, and the application was dismissed with no order as to costs. The matter was brought to a close, and the lower court file was to be remitted for further proceedings as necessary.
Court Disposition
application dismissed; motor vehicle to be released to applicant; auctioneer discharged from contempt; no order as to costs; file closed
Orders
- The motor vehicle be released to the applicant forthwith.
- Any costs of storage to be pursued from the decree-holder and paid by him upon agreement or taxation by the trial court.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC. CIVIL APPLICATION NO. 283 OF 2018
HATARI SECURITY COMPANY LTD…………………………………..APPLICANT
VERSUS
1. HAMISI CHARO
2. NDUTUMI AUCTIONEERS………………………………...............RESPONDENTS
R U L I N G
1. It is not in dispute that the motor vehicle Registration No. KCM 764X was attached and kept by the auctioneer pursuant to warrants which have since been set aside. When set aside, at the instance of the judgment debtor, all burdens they carried and placed on the judgment debtor were equally set aside. Accordingly, I do find that the judgment debtor cannot be burdened with the storage charges as contended by the auctioneers counsel.
2. In the same vein, I do find that the auctioneer has given a plausible and sufficient explanation to the effect that he has obeyed and complied with the court orders for release, has issued a release order but the motor vehicle having been kept at a parking yard, the yard owner insists on the storage charges. I consider that yard owner as an independent contractor and who is not yet before me and I cannot determine his rights while he is not before me.
3. Accordingly, and this matter having come before me by way of supervisory jurisdiction, and to bring it to an early close, I do order that the motor vehicle be released to the Applicant forthwith and any costs of storage be pursued from the decree-holder and paid by him upon agreement on the sum due or on taxation by the trial court.
4. I discharge the auctioneer of the accusation of contempt and direct that the application dated 7/3/2019 be dismissed with no orders as to costs.
5. This file shall now be marked as closed, and the lower court file earlier on brought here for perusal, be remitted back to the trial court to enable concluding court processes be undertaken.
Dated and delivered at Mombasa this 26th day of March 2019.
P.J.O. OTIENO
JUDGE