[2022] KEHC 464 (KLR)

Hemed & another v Karisa; Mwangangi (Interested Party) (Civil Appeal E001 of 2020) [2022] KEHC 464 (KLR) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 464 (KLR)

Republic of Kenya

In the High Court at Garsen

Civil Appeal E001 of 2020

SM Githinji, J

May 5, 2022

Between

Aisha Hassan Hemed

1st Appellant

Bashir Abdalla Karisa

2nd Appellant

and

Peter Luganje Karisa

Respondent

and

John Musya Mwangangi

Interested Party

(This was an Appeal against the Ruling and/or decision of Hon. E.Kadima – SRM to dismiss the Application dated 10th day of August, 2020 delivered on 12th November, 2020)

Ruling

Background 1. For determination before this court is the Applicants’ Notice of Motion dated 4th October, 2021 seeking the following orders;1. Spent2. That the honourable Court to enjoin the Applicant in the Appeal as an interested party or objector as the Court may deem fit.3. That the court be pleased to set aside or vary the orders of the court dated November 25, 2020and restore the motor vehicle Reg No. KBX 834X to the innocent purchaser John Musya Mwangangi.4. Or in the alternative, the court do rescind the sale of Motor Vehicle KBX 834X conducted on October 25, 2020and M/s Misa auctioneers be ordered to refund all the money expended by the Applicant in the course of the purchase.

2. The application is supported by the affidavit sworn by John Musya Mwangangi who states that on November 17, 2020, he saw an advert on the star newspaper advertising for the sale of motor vehicle registration number KBH 834X Nissan Matatu. That he conducted his due diligence and visited the offices of M/S Misa auctioneers to ascertain if there was an objection to the sale whose answer was to the negative.

3. He then applied for an emergency loan of Kshs. 1,000,000 so as to be able to meet the conditions of sale. He further stated that the public auction took place on 25th November 2020 in accordance with the court decree in Garsen Civil Suit No. 33 of 2019 and he paid all the monies that were required to be paid.

4. It was stated that at the time of the sale there was no objection at all to the auction and all parties had notice thus all procedures to a sale by public auction were well followed.

5. He deponed that following the auction, the auctioneer obtained a vesting order declaring the sale absolute and vested the motor vehicle in him therefore becoming a bonafide owner.

6. It was further deponed that the Appellants then filed an appeal seeking that the vehicle be arrested and placed in a police station which application was allowed and the motor vehicle is in the hands of theO.C.SMalindi Police Station where it continues to depreciate in value and occasioning him a loss of Kshs. 5,000 a day thus unable to service his loan.

7. The 2nd appellant filed a replying affidavit and stated that there are no orders dated November 25, 2020 and the only orders issued by this court are the orders dated November 23, 2020 and 15th December 2020. He added that the orders issued on November 23, 2020 stayed any purported sale by way of public auction for purposes of maintaining status quo pending the appeal.

8. He further stated that the orders sought have been superseded by events.

9. The respondent filed a replying affidavit sworn by their advocate stating that based on the court decree in Garsen PMCC No 33 of 2019, a sale by public auction took place on November 25, 2020 which took place in full compliance with the applicable law and procedures and a vesting order was made pursuant to order 22 Rule 64 (2).

10. It was stated that the respondent was no longer in possession of the motor vehicle as the same was sold to the highest bidder and the interested party became the owner of the said motor vehicle.

Interested Party’s submissions 11. The interested party submitted that it was a typographic mistake in quoting the dates of the orders that the applicant sought to vary and that they sought to vary the orders dated 15th December 2020.

12. It was submitted that it is in the interest of justice that the orders sought be granted.

The Appellants Submissions 13. The appellant submitted that the Interested party has never demonstrated eagerness to prosecute his application thus the same should be struck out.

14. It was also submitted that the attachment and sale of the motor vehicle was in disregard of the court orders issued on 23rd November 2020 and therefore the court cannot review orders based on an action or intent which was unlawful and irregular in that respect.

15. It was further submitted that prayer number 4 is addressed to the auctioneer who is not a party to the Appeal.

16. The appellant further submitted that the applicant was indolent in lodging the application thus ought to be dismissed.

Respondent’s Submissions 17. It was submitted that the sale of the said motor vehicle was conducted in accordance with the laid down procedures as set out in the Auctioneer Rules and that the Appellant has not demonstrated that any fraud was committed during the auction and as such orders of rescinding cannot issue. Reliance was placed on the authority of George Omollo Ogoma v Eagle Miller Ltd & Infrastructure- Technology Africa Ltd [2016]eKLR.

18. They further submitted that prayer 3 of the application is opposed as the same is in respect of Misa Auctioneers who is not a party to the suit. They relied on Egal Mohamed Osman v Inspector General of Police & 3 others [2015] eKLR.

Analysis and Determination Issues for Determination1. Whether the Applicant meets the threshold for being enjoined as an interested party.2. Whether the Applicant has met the threshold of setting aside or varying the court orders dated 15th December, 2020 and restore the motor vehicle to him.

Whether the Applicant meets the threshold for being enjoined as an interested party. 19. Rule 7 (1) of the Mutunga rules provides guidelines for enjoining a third party to proceedings as follows;“A person may, with the leave of the court, make an oral or written application to be joined as an interested party 7 (2) provides that “a party may on its own motion join as interested party to the proceedings before it.”

20. The case law on enjoining a third party was well settled in Francis Karioko Muaruatetu & Another v Republic and 5 others [2016] eKLR.

21. One must move the court by way of formal application. Enjoinment is not as of right, but it is at the discretion of the court hence sufficient grounds must be laid before the court, on the basis of the following elements;i.The personal interest or stake that the party has in the matter be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral (Emphasis mine).ii.The prejudice to be suffered by the intended party in case of non-joinder, must also be demonstrated to the satisfaction of the court. It must also be clearly outlined and not something remote.iii.Lastly, a party must, in its application set out the case and/or submissions it intends to make before the court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the court.

22. The applicant states that he is a bona fide purchaser of the suit motor vehicle by way of a public auction. The position has not been rebutted by the other parties and the only contested issue is the validity and legality of the sale. As such, it is my finding that there is an identifiable and legitimate interest by the applicant qualifying him to be enjoined as a third party.

Whether the Applicant has met the threshold of setting aside or varying the court orders dated 15 thDecember, 2020 and restore the motor vehicle to him. 23. On setting aside of judgment or orders, Order 12 Rule 7 of the Civil Procedure Rules provides: -“Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.”

24. Further the provision is buttressed by Order 51 Rule 15 of the Civil Procedure Rules/ which provides: -“The court may set aside an order made ex parte"

25. The above provision of the Civil Procedure Rules clearly provides for setting aside ex-parte orders. The orders sought to be set aside were made when interested parties were not yet on record. It would be improper to maintain an order issued when a party had not been enjoined as an interested party; as this would amount to condemning such a party who was not aware of the matter and who had no opportunity to file a response, unheard.

26. I am alive to the fact that in exercise of the discretion and in doing substantive justice, the courts have no limits or restrictions except that it should be based on such forms as may be just because the main concern of the court is to do justice to the parties and thus the discretionary powers should be exercised judiciously and not arbitrary. The courts hands cannot be tied as long as the court is acting within the law and not arbitrary.

27. In the case of Wachira Karani vs Bildad Wachira (2016) eKLR in allowing an application to set aside an ex parte judgment the court held that: - “The rationale for this rule lies largely on the premise that an exparte judgment is not a judgment on the merits and where the interests of justice are such that the defaulting party with sound reasons should be heard then that party should indeed be given a hearing."

28. I find that unless the application is allowed the interested party stands to lose the subject motor vehicle without having been given a hearing as enshrined in Article 50 of the Constitution of Kenya. If the interested party is denied an opportunity to be heard, justice shall not be done and seen to be done.

29. In view of the above and having considered the facts in support of the application and in opposition, I am satisfied that the interested party has met the threshold to warrant setting aside theexparte orders.

30. The suit motor vehicle is the subject of the appeal and setting aside the orders dated December 15, 2020 would mean allowing the prayer by the interested party seeking that the motor vehicle be restored to him which may appear that the substratum of the appeal would be lost. However, motor vehicle value can be ascertained and successful party on appeal can be adequately compensated by way of damages.

31. Flowing from the foregoing, I make the following orders;1. That the orders issued on December 15, 2020 be and are hereby set aside and the motor vehicle be released to the Interested Party.2. That the interested party put in their response to the appeal if they find it necessary to do so within 14 days from the date hereof.3. That this matter be mentioned on June 2, 2022 for directions.4. Costs be in the Cause.

RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 5THDAY OF MAY, 2022. S.M. GITHINJIJUDGEIn the presence of; -1. Miss Azei holding brief for Mr Okul Advocate for the Applicant2. Mr Mwaura and Mwaura Wahinya for the Interested Parties (absent)3. Mr Wambua Kilonzo Advocate for the Respondent