[2024] KEELC 6015 (KLR)

In re Chris Allan Butende t/a Status Auctioneers (Environment and Land Appeal 32 of 2022) [2024] KEELC 6015 (KLR) (20 September 2024) (Ruling)

Neutral citation: [2024] KEELC 6015 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Environment and Land Appeal 32 of 2022

LL Naikuni, J

September 20, 2024

Between

Chris Allan Butende t/a Status Auctioneers

Auctioneer

and

Linn Alexander James Denholm

Appellant

and

Catherine Nduku Muema

Respondent

((Arising from Judgement delivered on 22{{^nd}} on November 2023 and decree issued on 11{{^th}} day of December, 2023 issued))

Ruling

I. Introduction 1. This Honourable Court has been tasked on making a determination onto the Ex - Parte Notice of Motion application dated 21st March, 2024. It was brought by Chris Allan Butende T/A Status Auctioneers, the Applicant herein pursuant to the provision under Rule 9 (1) & (2) and Rule (5b) of the Auctioneers' Rules 1997 and the Auctioneers’ Amendment Rules, 2009.

II. The Applicant’s case 2. The Applicant’s sought out the following orders:a.Spentb.That this Honourable Court be pleased to authorize M/s Status Auctioneers, duly licensed Auctioneer to break-in and enter the premises of the suit premises know as Plot No.11616/III/MN situate at Mtwapa and implement and/or enforce a lawful eviction pursuant to from Judgement delivered on 22nd on November 2023 and decree issued on 11th day of December, 2023. c.That this Honourable Court be pleased to direct and/or Order the Officer Commanding Station (O.C.S)- Mtwapa Police Station and/or any other Police Officer under his command to offer/ provide enough security to M/S Status Auctioneers in order to implement and/or enforce a lawful eviction pursuant to from Judgement delivered on 22nd on November 2023 and decree issued on 11th day of December, 2023. d.That Costs of the application to be provided for.

3. The application by the Applicant herein was premised on the grounds, testimonial facts and averments made out under the 15th Paragraphed Supporting Affidavit of Chris Allan Butende sworn and dated 21st March, 2024 with four (4) annextures marked as ‘CAB - 1 – 4” annexed thereto. The Applicant averred that:a.He was a duly Licensed Auctioneer of this Honourable Court trading under the name and style of M/. s Status Auctioneers. Annexed in the affidavit and marked as “CAB - 1” is a copy of his Licence.b.On 22nd November 2023 the Honourable Court delivered a Judgement and decreed that the suit property and house standing on all that parcel of land known as Plot No.11616/III/MN situated at Mtwapa belongs to Appellant/Decree holder herein in which the Respondent had fraudulently transferred in her name, upon which the Defendant later relocated to United States of America.c.Consequently, the Appellant/Decree Holder had extracted the court's decree hereof and served upon the Respondent and the Registrar of Lands to immediately transfer the suit property to the Appellant, the said Decree had since been registered on the said title in favour of the Appellant. Annexed in the affidavit and marked as “CAB - 2” was a copy of the said Decree.d.The Appellant had on several occasions tried to enforce the aforesaid orders and decree against the Respondent in order to access the suit premises, the said attempts had been met with hostility, blackmail and intimidation by the Respondent and her agents without any legal and lawful consideration.e.The Respondent through her advocate had been writing unlawful and illegal letters claiming ownership of the suit property to circumvent the court orders as decreed by this Honourable Court.f.The Judgment Debtor filed two formal applications dated 5th and 18th December 2023 seeking for in Court for stay of execution of the aforestated Judgement and the Decree which prior to being litigated were discreetly withdrawn. Annexed hereto and marked as ‘CAB - 3’ was a copy of the said Notice of withdrawal.g.He was further re-issued with Warrants of Attachment and Sale dated 29th November, 2023 to enable the Applicant to proceed with execution by way of Sale through public Auction schedule on 8th December, 2023 as per the advertisement in the daily newspaper. Annexed hereto and marked as “CAB - 4” was a copy of the newspaper advertisement.h.Under the provision of Rule 9 (1) & (2) of the Auctioneers' Rule 197 and the Auctioneers Amended Rules 2009, he was allowed to apply to this Honourable Court to be issued with Security from the nearest Police Station for implementation of any Court Order and this particular case, to execute the Warrants of Attachment and Sale herein.i.The Security Agents could not involve themselves in all Civil matters without a Court Order authorizing them to do so.j.He was strongly convinced that there was nothing he could do if he was not given police security to do the assignment advanced to him and hence unless the orders sought are granted, the warrants of sale in situ will remain useless in his hands.k.Unless orders sought were granted, the Court’s work, time and authority would in effect be ridiculed and rendered uselss.l.It was in the interest of justice that this application be allowed ex – debito justitiae since the same was just a formality.

III. Submissions 4. On 22nd March, 2024 the Honourable Court directed that the Ex - Parte - Notice of Motion application dated 21st March, 2024 be canvassed by way of written submission. The Honourable Court took cognizance that the two Leraned Counsels – Mr. Ondeng and Mr. Adala for both the Decree Holder/Applicant and Judgement Debtor vehemently submitted on these issues. The Honourable Court was sincerely grateful to them for executing their duties very effectively. Pursuant to that on 4th April, 2024 the Honourable Court reserved a ruling date on notice.

IV. Analysis and Determination 5. I have carefully read and considered the pleadings herein being the application dated 21st March, 2024 by the Applicant, the myriad of cases cited herein by parties, the relevant provisions of the Constitution of Kenya, 2010 and statures.

6. In order to arrive at an informed, Just, equitable and reasonable decision, the Honorable Court has two (2) framed issues for its determination. These are:-:a.Whether the break in order and other preceeding consequential orders in the Notice of Motion application dated 21st March, 2024 is merited?b.Who meets the costs of the Notice of Motion application dated 21st March, 2024?Issue No. a) Whether the break in order and other preceeding consequential orders in the Notice of Motion application dated 21st March, 2024 is merited.

7. Under this Sub – heading, the main substratum is on the issuance of the orders sought in the Notice of Motion application. The orders the Applicant seeks are orders that are mandantoty in nature. The background of this instant case is that on 22nd November 2023 the Honourable Court delivered a judgement and decreed that the suit property and house standing on Plot No.11616/III/MN situate at Mtwapa belongs to Appellant/Decree holder herein in which the Respondent had fraudulently transferred in her name, upon which the Defendant later relocated to United States of America. Consequently, the Appellant/Decree holder had extracted the court's decree hereof and served upon the Respondent and the Registrar of Lands to immediately transfer the suit property to the Appellant, the said dlecree has since been registered on the said title in favour of the Appellant. Annexed in the affidavit and marked “CAB - 2” is a copy of the said decree.

8. The Appellant had on several occasions tried to enforce the aforesaid orders and decree against the Respondent in order to access the suit premises, the said attempts have been met with hostility, blackmail and intimidation by the Respondent and her agents without any legal and lawful consideration. The Respondent through her advocate had been writing unlawful and illegal letters claiming ownership of the suit property to circumvent the court orders as decreed by this Honourable Court.

9. The court is mindful of the requirement of substantial justice under the provision of Article 159 of the Constitution and the principle that procedure is the handmaid of justice and gate-way to justice. However, as demonstrated above, the Appellant in this case appears to have closed the door on himself by his very conduct of the proceedings in the trial court.

10. To back itself on this point, the Court relies on the case of “Stephen Maina Kimanga and 4 others – Versus - Lucy waithira Mwangi and 2 others (2015) eKLR” where the court says;“However, where it is apparent that a party is unreasonably and unlawfully attempting to obstruct a lawful process or the cause of justice, a court of law will not hesitate to stamp its seal of authority using the lawful agencies of the state. I am satisfied that the current application for the use of external forces to oversee the execution of this court’s order is merited.”

11. Further, the Applicant relies on the provision of Rule 9 of the Auctioneers Rules: It states thus:-Police assistance1. Where an auctioneer has reasonable cause to believe that—a.he may have to break the door of any premises where goods may be seized or repossessed; orb.he may be subject to resistance or intimidation by the debtor or other person; orc.a breach of the peace is likely as a result of seizure, repossession or attempted seizure or repossession of any property, the auctioneer shall request for police escort from the nearest police station in order to carry out his duties peacefully.2. An application under this rule shall be by motion by way of a miscellaneous application support by an affidavit and may be heard ex parte

12. The law as regards the principle to be applied when considering whether or not to grant mandatory injunction is higher than that in respect of prohibitory injunction. In the case of “Locabail International Finance Limited – Versus - Agro – Export & Another (1986)1 ALL ER 901” it was stated:“A mandatory injunction ought not to be granted on an interlocutory application in the absence of Special circumstances and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was at a simple and summary act which could easily be remedied or where the defendant had attempted to steal a watch on the plaintiff. Moreover, before granting a mandatory injunction the court had to feel a high sense of assurance that at the end of the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than required for a prohibitory injunction.”

13. It is now well known that the courts have been reluctant to grant mandatory injunction at the interlocutory stage. However, where it is prima facie established as per the standards spelt out in the law as stated above that the party against whom the mandatory injunction is sought is on the wrong, the courts have taken action to ensure that justice is meted out without the need to wait for full hearing of the entire case.

14. It is instructive to note that the Judgment Debtor had filed two formal applications dated 5th and 18th December 2023 in Court seeking for stay of execution of the Judgement and the Decree. However, prior to being litigated were discreetly withdrawn. Annexed hereto and marked as ‘CAB - 3’ is a copy of the said Notice of withdrawal. Subsequently, he was further re-issued with Warrants of Attachment and Sale dated 29th November, 2023 to enable the Applicant proceed with execution by way of Sale through public Auction schedule on 8th December, 2023 as per the advertisement in the daily newspaper. Annexed hereto and marked as “CAB - 4” is a copy of the newspaper advertisement. Under the provision of Rule 9 (1) & (2) of the Auctioneers’ Rule 197 and the Auctioneers Amended Rules 2009, he was allowed to apply to this Honourable Court to be issued with Security from the nearest Police Station for implementation of any Court Order and this particular case, to execute the Warrants of Attachment and Sale herein.

15. The Security Agents could not involve themselves in all Civil matters without a Court Order authorizing them to do so. He is strongly convinced that there was nothing he could do if he was not given police security to do the assignment advanced to him and hence unless the orders sought are granted, the warrants of sale in situ will remain useless in his hands.

16. Therefore, having carefully fully considered the material before me, I am satisfied that the Applicant has made out a case to warrant the grant of the orders sought herein.Issue No. b). Who meets the costs of the Notice of Motion application dated 21st March, 2024

17. Although costs of an action or proceeding are at the discretion of the court, the general rule is that costs shall follow the event in accordance with the proviso to Section 27 of the Civil Procedure Act (Cap. 21).

18. A successful party should ordinarily be awarded costs of an action unless the court, for good reason, directs otherwise. See “Hussein Janmohamed & Sons – Versus - Twentsche Overseas Trading Co. Limited [1967] EA 28”. The Court in this instant case reserves the discrection of awarding no costs.

V. Conclusion and Disposal 19. The upshot of the foregoing is that after conducting such an intensive and elaborate analysis to the framed issues, the court is satisfied that the Applicant in the Notice of Motion application dated 21st March, 2024 has on balance and preponderance of probability established its claim. Therefore, for avoidance of any doubts, I proceed to specifically order: -a.That the Notice of Motion application dated 21st March, 2024 be and is hereby found to be have merit in entirety without costs.b.That this Honourable Court be and hereby authorizes M/S Status Auctioneers, duly licensed Auctioneer to break-in and enter the premises of the suit premises know as Plot No.11616/III/MN situate at Mtwapa and implement and/or enforce a lawful eviction pursuant to from Judgement delivered on 22nd on November 2023 and decree issued on 11th day of December, 2023. c.That this Honourable Court be and hereby directs and orders the Officer Commanding Station (O.C.S)- Mtwapa Police Station and any other Police Officer under his command to offer and provide enough security to M/S Status Auctioneers in order to implement and/or enforce a lawful eviction pursuant to from Judgement delivered on 22nd on November 2023 and decree issued on 11th day of December, 2023. d.That there shall be no orders as to costs.

It Is So Ordered Accordingly.

RULING DELIEVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS 20TH DAY OF SEPTEMBER 2024. ……………………………………HON. MR. JUSTICE L.L NAIKUNIENVIRONMENT AND LAND COURT ATMOMBASARuling delivered in the presence of: -a. M/s. Firdaus Mbula – the Court Assistantb. Mr. Ondeng Advocates for the Ex - Parte Applicant/ Decree Holder.c. Mr. Adala Advocate for the Judgement Debtor/Respondent.