[2019] KEHC 252 (KLR)
The court determined that the issues raised in the suit, including the validity of the guarantee, the transfer of the motor vehicle, and allegations of forgery and coercion, are serious and cannot be resolved solely on affidavit evidence. To ensure justice and proper determination of the real issues in dispute, the...
Source-derived case information.
- Citation
- [2019] KEHC 252 (KLR)
- Parties
- Plaintiff: Milhan Access Capital Limited; Defendant: Dorcas Ayoo Oloo; Defendant: Joseph Kipkurui Towett; Defendant: Inspector General of Police
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 128 of 2019
- Procedural Posture
- Civil Case / Pre Trial Directions; Judgment Vacated, Matter Set for Oral Hearing
- Outcome
- Judgment vacated; matter to proceed to full hearing with oral evidence.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Repossession of Movable Property, Guarantee Validity, Allegation of Forgery, Transfer of Motor Vehicle
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Milhan Access Capital Limited
Plaintiff
Dorcas Ayoo Oloo
Defendant
Joseph Kipkurui Towett
Defendant
Inspector General of Police
Defendant
Procedural Posture
Civil Case / Pre Trial Directions; Judgment Vacated, Matter Set for Oral Hearing
Legal Issues
- 1 Whether the validity of the guarantee by the 2nd defendant can be determined on affidavit evidence alone.
- 2 Whether the transfer of the motor vehicle from the 2nd defendant to the 1st defendant was valid.
- 3 Whether allegations of forgery and coercion require oral evidence and cross-examination.
Ratio Decidendi
The court determined that the issues raised in the suit, including the validity of the guarantee, the transfer of the motor vehicle, and allegations of forgery and coercion, are serious and cannot be resolved solely on affidavit evidence. To ensure justice and proper determination of the real issues in dispute, the court vacated the order to deliver judgment and directed that the matter proceed to a full hearing with oral evidence and cross-examination of witnesses.
Court Disposition
Judgment vacated; matter to proceed to full hearing with oral evidence.
Orders
- Order to deliver judgment is vacated.
- Parties to take a hearing date for oral evidence and cross-examination.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 128 OF 2018
IN THE MATTER OF REPOSSESION AND SALE OF THE MOTOR VEHICLE
REGISTRATION NO. KBU 276K TOYOTA SALOON AND IN THE MATTER OF THE
CHATTERLS TRANSFER ACT, CHAPTER 28 LAWS OF KENYA (REPEALED)
AND IN THE MATTER OF THE MOVABLE PROPERTY SECURITY RIGHTS ACT NO. 13 OF 2017
BETWEEN
MILHAN ACCESS CAPITAL LIMITED.............................PLAINTIFF
VERSUS
DORCAS AYOO OLOO.....................................................DEFENDANT
JOSEPH KIPKURUI TOWETT................................2ND DEFENDANT
INSPECTOR GENERAL OF POLICE....................3RD DEFENDANT
DIRECTIONS
This suit was instituted by the plaintiff by way of Originating Summons. Alongside the said pleading, there was a Notice of Motion seeking the same substantive orders that appear in the Originating Summons. Subsequently, the parties herein filed their respective affidavits and submissions and the matter listed for judgment today.
On retiring to prepare the judgment, I noted that the issues raised by the parties may not be resolved by way of affidavit evidence alone. Infact, on 27th November, 2018 the court noted that the orders sought in the application will have the effect of determining the entire suit. As a result both counsel agreed oral evidence should be adduced and a hearing date set.
This order appears to have been overshadowed in the process of the many mentions that followed thereafter. Serious questions have been raised relating to the validity of the guarantee by the 2nd defendant, the transfer of the motor vehicle the 2nd defendant to the 1st defendant, the allegation of forgery which have led to the filing of criminal charges as against the 1st defendant and her spouse and coercion alleged by the 2nd defendant as against the plaintiff among others.
It is necessary for the averments of the respective parties herein, to be tested and subjected to cross examination, so as to assist the court in determining the real issues in dispute. If I were to proceed on affidavit evidence alone, injustice may follow. Accordingly, the order to deliver judgment is hereby vacated and parties directed to take a hearing date when all witnesses shall be present for the hearing of the suit herein. The costs shall be in the cause.
Issued and dated this 21st Day of November, 2019.
A. MBOGHOLI MSAGHA
JUDGE