[2022] KEHC 9812 (KLR)

Masuu v Masuu (Civil Appeal 38 of 2018) [2022] KEHC 9812 (KLR) (5 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9812 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal 38 of 2018

GMA Dulu, J

July 5, 2022

Between

Daniel Kyalo Masuu

Applicant

and

Geoffrey Muindi Masuu

Respondent

Ruling

1. Before me is an application dated 18th November 2021 filed by Daniel Kyalo Masuu the appellant herein, through counsel Ms. Kimondo Gachoka & Company advocates under Order 51 Rule 1 of the Civil Procedure Rules 2010 and section 1A(1) (2) (3) and 3A of the Civil Procedure Act, as well as Article 159 of the Constitution of Kenya 2010.

2. The application seeks the following orders –1. (Spent)2. (Spent)3. (Spent)4. That this court be pleased to declare the attachment of motor vehicle registration number KBY 496J by the respondent’s agent is illegal and unlawful.5. This court be pleased to order unconditional release of motor vehicle number KBY 496J.6. That the court be pleased to order OCS Pangani Police Station to provide escort, security and/or any necessary assistance to the applicants their agents and or servants assist in the release of the applicants’ motor vehicle registration Number KBY 496J.7. That all storage costs due to the storage yard and consequential loss incurred by the applicant for loss of use of the motor vehicle registration Number KBY 496J from the date of the unlawful attachment to the date the motor vehicle will be released to be paid by the respondent and or their agents.8. That the auctioneers do tax their bill to scale.9. The costs of this application be borne by the respondents.

3. The application has grounds on the face of the Notice of Motion that after judgment was delivered in this appeal on October 6, 2021, the applicant was served with warrants of attachment, and filed an application, and obtained stay orders from this court. That though the stay orders were served on the respondent’s counsel on November 17, 2021the applicant’s motor vehicle No. KBY 496J was attached by the auctioneers and advertised for sale for November 27, 2021. That the applicant had already paid the decretal amount and also asks the auctioneers to tax their bill of costs, as they were demanding exorbitant amount. Finally, that the vehicle was a public service vehicle and the applicant’s only means of livelihood.

4. The application was filed with a supporting affidavit sworn by the applicant on November 18, 2021, which affidavit amplifies the grounds of the application and depones that the vehicle earned an income of Kshs.15,000/= per day as a public service vehicle. The application was also filed with other affidavits sworn by John Mokua Moranga the vehicle driver, Haron Moroga a process server, and Maurice Kwena a process server.

5. I have to state here that, this application is related to an earlier application dated 9th November 2021 filed by the applicant, which sought the lifting of the motor vehicle attachment and proclamation, and also sought grant of time to obtain money to pay the balance of the decretal amount in two installments. In my view, the application dated November 9, 2021 has been overtaken by events, and I so mark it as overtaken by events.

6. The application dated November 18, 2021was opposed through a replying affidavit sworn by Francis Ndambuki Sila advocate, for the respondent on 3rd December 2021, in which it was deponed that the auctioneer was served with the court’s order on November 17, 2021 through whattsapp when the motor vehicle had already been attached on November 16, 2021, and that the auctioneers were not aware that the amount of Kshs.614,500/= had been paid at that time, and that the attachment was thus lawful.

7. In response, applicant filed a further affidavit sworn on December 18, 2021by Joyce Chichi advocate, in which they denied that they had an advocate by the name of Bob Ogode, and reiterated that the court’s stay order herein was served in the early hours of November 16, 2021, but that attachment was thereafter done on November 17, 2021.

8. The application was canvassed through written submissions. In this regard, I have perused and considered the written submissions filed by Kimondo Gachoka & Company for the applicants and the submissions filed by Sila & Company for the respondent. I note that the respondent’s counsel has, inter alia, argued that the application was filed in the wrong court, as according to them, it should have been filed in the magistrate’s court.

9. In my view, the argument that the application was filed in the wrong court, coming during written submissions, was too late. Such objection should have been raised at a very early stage, which it was not. Besides, the purported execution herein was stayed by orders in this appeal, and not the magistrate’s court file, so any application therefore had to be filed in this appeal court.

10. On the substantive issues, in my view the main issue turns on whether the decretal sum was paid in time before execution, and secondly, whether the stay orders issued herein, were served before the motor vehicle was attached and proclaimed.

11. Though the applicant filed an earlier application herein to be allowed to pay the decretal amount in installments, he did not say in the present application that any agreement was reached to pay the decretal amount in installments. The present application having been filed after the auctioneer proclaimed the vehicle for sale, and there being no evidence that the applicant formally told the auctioneer before attachment that the decretal amount was paid, I thus find that the auctioneers were not informed of payment before they attached the vehicle as the communication from the insurers is not candid on whether the auctioneers were so informed.

12. Was the auctioneer served with the court stay orders before they attached the motor vehicle? Again on this issue, I am told that the service of the stay order was done electronically, while the proclamation was done in writing. In my view, in the circumstances of this case, service of the court stay orders should have been done physically and in writing. It would also have assisted to put a telephone call; as the telephone number of the auctioneers was written in the proclamation. In the present case, there is no candid information provided, that would assist the court to conclude that the auctioneers were served with the court stay orders.

13. I thus find that, the auctioneers were not in error in attaching the motor vehicle of the applicant.

14. In view of the above position, and the prayers in the application, what orders should the court make? Now that all the decretal amount has been recovered, and it is so agreed by the parties, in my view, what the auctioneer is entitled to is the taxed costs assessed by the court’s Taxing Officer on March 9, 2022.

15. With regard to storage charges, I am not able to specifically assess them as the same were not pleaded and proved. In my view, however, storage charges if any, are payable until the date that counsel for the respondent learnt that payment of the total decretal amount was made, and from that point it became the obligation of the respondent’s counsel to inform the auctioneer who then had no basis for retaining the motor vehicle of the applicant and then purporting to claim storage charges.

16. With regard to payment for loss of use of the motor vehicle herein, again the same has not been specifically pleaded and proved, and this court cannot thus assess the same. The claim is dismissed.

17. Consequently, and for the above reasons, I order as follows –1)I find that the attachment of the motor vehicle number KBY 496J by the respondents agent (auctioneer) was lawful.a. I order that the vehicle be released to the applicant on payment by the applicant to the auctioneer of the amount of costs taxed by the Taxing Officer of this court.2)That the applicant is liable to pay to the auctioneer storage charges for the attached motor vehicle up to the date the respondent’s counsel was paid the decretal amount, if amount is not agreed, such to be a civil debt to be recovered in accordance with the law.3)That the claim for loss of use of the motor vehicle has not been proved and is hereby dismissed.4)That once the taxed costs of the auctioneers herein are paid to the auctioneer, the OCS Pangani Police Station be and is hereby ordered to provide security , escort and or any necessary assistance to the applicants, their agents and or servants and assist in the release of the applicant’s motor vehicle registration number KBY 496J.5)Parties will bear their respective costs of this application.

DELIVERED, SIGNED & DATED THIS 5TH DAY OF JULY, 2022, IN OPEN COURT AT MAKUENI.………………………………….George DuluJudge