[2007] KEHC 1192 (KLR)
The court found that the plaintiff had obtained judgment for battery, with liability and quantum determined, and that the defendant had resisted execution. The plaintiff lawfully executed against the defendant's land, which was sold by public auction to a bona fide purchaser. The defendant and his advocate, though...
Source-derived case information.
- Citation
- [2007] KEHC 1192 (KLR)
- Parties
- Plaintiff: Joel Kungu Wainaina; Defendant: Francis Njuguna Kungu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 200 of 1998
- Procedural Posture
- Tort Case / Application for Vesting Order Following Execution of Judgment
- Outcome
- Application allowed. Vesting order granted in favour of purchaser. Costs to applicant.
- Legal Topics
- Battery, Execution of Judgment, Vesting Order, Damages Assessment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joel Kungu Wainaina
Plaintiff
Francis Njuguna Kungu
Defendant
Procedural Posture
Tort Case / Application for Vesting Order Following Execution of Judgment
Legal Issues
- 1 Whether the court should grant an order to vest the defendant's land in the purchaser following execution of judgment for damages in tort of battery.
- 2 Whether the sale of the defendant's property by public auction was properly conducted and should be perfected by the court.
Ratio Decidendi
The court found that the plaintiff had obtained judgment for battery, with liability and quantum determined, and that the defendant had resisted execution. The plaintiff lawfully executed against the defendant's land, which was sold by public auction to a bona fide purchaser. The defendant and his advocate, though served, failed to appear or oppose the application. The court held that the sale was proper and that the applicant was entitled to orders vesting the property in the purchaser. The court further ordered that if the defendant failed to execute the transfer, the deputy registrar would do so, ensuring the judgment creditor's right to realize the decreetal sum was not frustrated by...
Court Disposition
Application allowed. Vesting order granted in favour of purchaser. Costs to applicant.
Orders
- The property LR No. Kiganjo Gachika/1331 is vested in Wilson Waithaka Gitau, the purchaser at public auction.
- If the defendant fails to execute the transfer, the deputy registrar shall execute the transfer on his behalf.
Full Case Text
Judgment text and source record
40 paragraphs
1. TORT
2. Finalized case
I: Subject
a) Battery
b) Defendant Francis Njuguna Kungu battered Joel Kungu Waianae
c) Liability 100%
Kasanga Mulwa J. 31. 1.01
d) Quantum:
i) Special damages Ksh. 3,000/-
ii) General damages Ksh.150,000/-
(Ombinja,J. 21. 2.02)
e) No appeal preferred.
3. Application 29 June 2007
a) The plaintiff has found purchaser to buy defendants only asset/land Land. LR No. Kiganjo Gachika/133, to recover the decreetal sum .
b) Defendants served with application - absent
c) Advocate for defendant - absent
d) Prayers sought to vest property to new purchase.
4. Held: Application to vest land to new purchaser allowed.
5. Advocate:
K Njau of Kiania Njau & Co. Advocates for the plaintiff/applicant- present
Mutali W. of Mutali Wanyama & Co. Advocates for the defendant/respondent- present
JOEL KUNGU WAINAINA ………………………………........PLAINTIFF
VERSUS
FRANCIS NJUGUNA KUNGU …………....………………DEFENDANT
RULING
I: Background to application to vest land to a purchaser on sale of defendants assets.
1. The defendant herein Francis Njuguna attacked Joel Kungu Wainaina and caused him bodily harm. He was sentenced to 3 years imprisonment in a criminal court for causing grievous harm to the said Francis Njuguna Kungu.
2. The said Francis Njuguna Kungu then filed a suit in the TORT of Battery. Liability was awarded to him at 100% (Kasanga Mulwa J) 31 January 2001. Quantum was awarded to him at Ksh.3,000/- for special damages and Ksh.150,000/- in General damages (Ombija J) (21 February 2002).
3. The defendant resisted execution.
4. The plaintiff managed to sell the said property being the defendant’s land of LR No. Kiganjo Gachika/1331.
5. The plaintiff/applicant has filed an application under section 48, 98 of the Civil Procedure Act and order XLI rules 81,83 and 84 of the Civil Procedure Rules; that sought orders
“To perfect the sale by court broker, “life line traders” pursuant to the warrant of attachment of property sold at a public auction on 17 December 2006 to one Wilson Waithaka Gitau.
That a certificate be granted to by the court vesting the said property LR Gachika/1331 in Wilson Waithaka Gitau the new seller.
6. It is therefore noted that the defendant nor his advocate appeared to oppose this application.
7. I accordingly allow the application as prayed with costs to the said applicant. The failure to execute the transfer the deputy registrar would do so.
Dated this 15th day of November 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
K Njau of Kiania Njau & Co. Advocates for the plaintiff/applicant- present
Mutali W. of Mutali Wanyama & Co. Advocates for the defendant/respondent- present