[2005] KEHC 3074 (KLR)
The court found that the applicant had come too late to seek an interlocutory injunction, as the vehicle in question had already been sold at a public auction to a third party. Even if there were irregularities in the distress process, the sale had already occurred, and the purchaser had acquired good title to the...
Source-derived case information.
- Citation
- [2005] KEHC 3074 (KLR)
- Parties
- Plaintiff: Leonard N. K. Moss; Defendant: Villa Care Limited; Defendant: Keysian Auctioneers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 369 of 2005
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs to the respondents
- Judges
- PJ Ransley
- Legal Topics
- Interlocutory Injunctions, Distress for Rent, Auction Sales, Title of Purchaser
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leonard N. K. Moss
Plaintiff
Villa Care Limited
Defendant
Keysian Auctioneers
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the applicant is entitled to an interlocutory injunction restraining the transfer of the motor vehicle.
- 2 Whether the applicant has established a prima facie case with a probability of success.
- 3 Whether damages would be an adequate remedy for the applicant.
Ratio Decidendi
The court found that the applicant had come too late to seek an interlocutory injunction, as the vehicle in question had already been sold at a public auction to a third party. Even if there were irregularities in the distress process, the sale had already occurred, and the purchaser had acquired good title to the vehicle. Therefore, the applicant could not be granted the orders sought and was only entitled to pursue a claim for damages under Section 26 of the Auctioneers Act. The application was dismissed with costs to the respondents.
Court Disposition
application dismissed with costs to the respondents
Orders
- The application for interlocutory injunction is dismissed.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Suit 369 of 2005
LEONARD N. K. MOSS………………………...........................………………PLAINTIFF
VERSUS
VILLA CARE LIMITED………………….........................……….……1ST DEFENDANT
KEYSIAN AUCTIONEERS…………….......................……………...2ND DEFENDANT
RULING
The Applicant applies for an interlocutory order that vehicle KAR 864E be detained by the Commissioner of Police and preserved and an injunction issue to restrain the transfer of the said motor vehicle.
The Applicant as he admits was in arrears in payment of rent. The 1st Respondent instructed the 2nd Respondent to levy distress which was duly done.
As a result the said vehicle having been proclaimed was eventually sold at a public auction to a third party.
The Applicant in order to succeed must show he has a prima facie case with a probability of success and damages would not be an adequate remedy.
The Applicant in my view comes too late. Even if there were irregularities in the distress process, the vehicle having been sold at public auction it is too late now to reverse the process. The purchaser has ostensibly a good title to the vehicle and cannot be dispossed of it.
In the result the Applicant is only entitled to pursue a claim for damages under Section 26 of the Auctioneers Act. I therefore dismiss this application with costs to the Respondents. In my view this suit should be heard as quickly as possible in respect of damages.
DATED and DELIVERED at NAIROBI on 20th April 2005
P.J RANSLEY
JUDGE