[2014] KEHC 1219 (KLR)
The court held that since the dispute arose from execution proceedings in the lower court, the proper procedure for seeking release of the attached motor vehicle was through objection proceedings during the execution process. Any dissatisfaction with the outcome of those proceedings should have been pursued by way...
Source-derived case information.
- Citation
- [2014] KEHC 1219 (KLR)
- Parties
- Applicant: Joshua Kivuva Mutuku; Respondent: Philip Mwanza Kanyotu; Respondent: Kitonga Mwanduka; Respondent: Willy Muli; Respondent: Scola Mukai John; Respondent: Josephine Sophia Mwanduka; Respondent: Mayanthi Mutua
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 56 of 2013
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application for Injunction and Release of Property
- Outcome
- application dismissed
- Judges
- BT Jaden
- Legal Topics
- Injunctive Relief, Execution of Decree, Objection Proceedings, Ownership of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Kivuva Mutuku
Applicant
Philip Mwanza Kanyotu
Respondent
Kitonga Mwanduka
Respondent
Willy Muli
Respondent
Scola Mukai John
Respondent
Josephine Sophia Mwanduka
Respondent
Mayanthi Mutua
Respondent
Procedural Posture
Civil Case / Ruling on Interlocutory Application for Injunction and Release of Property
Legal Issues
- 1 Whether the applicant is entitled to an order restraining the respondents from dealing with motor vehicle KBK 218C pending determination of the suit.
- 2 Whether the applicant is entitled to unconditional release of motor vehicle KBK 218C.
- 3 Whether the High Court is the proper forum for release of the motor vehicle after objection proceedings in the lower court.
Ratio Decidendi
The court held that since the dispute arose from execution proceedings in the lower court, the proper procedure for seeking release of the attached motor vehicle was through objection proceedings during the execution process. Any dissatisfaction with the outcome of those proceedings should have been pursued by way of appeal, not by instituting a fresh suit or seeking interlocutory relief in the High Court. The application for injunctive relief and release of the vehicle was therefore without merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 24/10/2013 is dismissed.
- Costs of the application to the respondents.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL CASE NO. 56 OF 2013
JOSHUA KIVUVA MUTUKU ..……………..……… PLAINTIFF/APPLICANT
VERSUS
PHILIP MWANZA KANYOTU
KITONGA MWANDUKA
WILLY MULI
SCOLA MUKAI JOHN
JOSEPHINE SOPHIA MWANDUKA
MAYANTHI MUTUA ………….….… DEFENDANTS/RESPONDENTS
R U L I N G
The application dated 24/10/2013 presently seeks orders that:-
(Spent).
(Spent).
THAT, pending the hearing and determination of this suit an order do issue restraining the Defendants by themselves, their agents, employees or servants and/or persons acting under their authority from selling, alienating, transferring and/or in any other manner dealing with the Plaintiff’s possession and ownership of motor vehicleKBK 218C.
THAT, the suit motor vehicleKBK 218Cbe unconditionally released to the Plaintiff.
THAT, costs of this application be provided for.
The Applicant’s case according to the affidavit in support and the further affidavit is that the Applicant purchased the motor vehicle the subject of this suit from the 1st Respondent, Philip Mwanza Kanyotu. The motor vehicle was thereafter proclaimed in execution of a decree in PMCC Kitui 294 of 2010 and PMCC Kitui 40, 53, 54 and 122 of 2011. That the Applicant’s objection proceedings in the aforestated suits was dismissed after his advocate who did not have a current practicing certificate failed to attend court. A further application for stay of execution failed. It is that the Applicant moved to this court and instituted the suit herein by way of plaint dated 24/10/13 seek inter alia, declaratory orders that the motor vehicle belongs to him.
In opposition to the application, the Respondents filed a replying affidavit. It was averred that there is no evidence of transfer of the motor vehicle in question from Asitama Trading Co. Ltd to the 1st Respondent herein. That the motor vehicle was attached by Kande Auctioneers who are not parties herein and that the release of motor vehicle can only be made by way of objection proceedings. That if the Applicant was aggrieved by the ruling of the lower court, he ought to have exercised his right of appeal. According to the Respondents, the application is an abuse of the process of the court.
The application was canvassed by way of written submissions which I have duly considered.
It is not in dispute that the proceedings herein emanate from execution proceedings in the suits before the lower court. Consequently, I agree with the submissions by the Respondent’s counsel that the correct forum for the release of the motor vehicle was through objection proceedings during the execution process. Any dissatisfaction with the lower court’s ruling in the objection proceedings or any other subsequent proceedings ought to come to this court by way of appeal. The application has no merits and I dismiss the same.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 24thday of November2014.
………………………………………
B. THURANIRA JADEN
JUDGE