[2008] KEHC 3073 (KLR)
The court held that an oral application for preservation of the subject motor vehicle could not be granted. The proper procedure requires a formal application so that all parties are aware of the scope and basis for the preservation order. Since the previous orders were not confirmed and the third defendant was not...
Source-derived case information.
- Citation
- [2008] KEHC 3073 (KLR)
- Parties
- Plaintiff: Mohammed Ahmed Abubakar; Plaintiff: Mohammed Hamid Khamis; Defendant: Simon Mbugua; Defendant: Langata Road Motors Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 14 of 2008
- Procedural Posture
- Civil Case / Interlocutory Application for Preservation Order Pending Main Application
- Outcome
- Application for oral preservation order refused; liberty granted to file formal application.
- Legal Topics
- Interlocutory Injunctions, Preservation of Property, Attachment Before Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohammed Ahmed Abubakar
Plaintiff
Mohammed Hamid Khamis
Plaintiff
Simon Mbugua
Defendant
Langata Road Motors Ltd
Defendant
Procedural Posture
Civil Case / Interlocutory Application for Preservation Order Pending Main Application
Legal Issues
- 1 Whether the court should grant an oral application for preservation of the subject motor vehicle pending the disposal of the main application.
- 2 Whether a formal application is required for orders of preservation of property in dispute.
Ratio Decidendi
The court held that an oral application for preservation of the subject motor vehicle could not be granted. The proper procedure requires a formal application so that all parties are aware of the scope and basis for the preservation order. Since the previous orders were not confirmed and the third defendant was not originally a party, there are currently no operative orders in force. The plaintiffs are at liberty to file a formal application for preservation if they so wish, but until such application is made and determined, there is no justification for granting preservation orders at this stage.
Court Disposition
Application for oral preservation order refused; liberty granted to file formal application.
Orders
- Plaintiffs are at liberty to file a formal application for preservation of the motor vehicle.
- No preservation orders are currently in force.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Case 14 of 2008
1 MOHAMMED AHMED ABUBAKAR
2 MOHAMMED HAMID KHAMIS …….....………………PLAINTIFFS
VERSUS
1 SIMON MBUGUA
2 LANGATA ROAD MOTORS LTD …………………DEFENDANTS.
RULING
Mr. Buti for the plaintiff applies for the motor vehicle which is the subject matter of this suit to be preserved pending the disposal of the main application.
Mr. Onyango for the third defendant objects to the application because the initial orders were made in respect of the first and second defendants and the third defendant was not a party. Secondly, the orders were made under Order XXXVIII by way of attachment before judgment and not for preservation. He submitted that for the later course of action, a formal application ought to be made. At any rate if such orders are made, they will contradict the ruling which had just been delivered.
In reply, Mr. Buti argued that it was not correct for Mr. Onyango to state that his client was not a party to the proceedings while he was now the third party. He also submitted that when the protagonists are disputing the title, the vehicle should be preserved. He finally urged that if a formal application were required, he would apply for 14 days within which to file the application, and that until then motor vehicle would be preserved.
I have considered the submissions of the respective counsel. The orders which were made by this court in this matter on 7th February, 2008 were made when the third defendant was not a party to these proceedings. For the reasons adduced in the court’s ruling dated 19th March, 2008, these orders were not confirmed. Logically, therefore, there are no orders in force at this stage.
Learned counsel for the plaintiffs now seeks orders that the vehicle be preserved. At this juncture, I don’t think that the orders sought should be granted on an oral application. In all fairness, that is an application which ought to be made formally so that we are all in the know as to the parameters within which the vehicle is being preserved.
The plaintiffs are at liberty to file a formal application, if they so wish. Otherwise, there is no compelling reason as to why the vehicle should be preserved pending a formal application to preserve it.
If I may be of assistance to the parties, it is the very sincere view of this court that the shortest route to the end of this matter is the expeditious hearing and disposal of the application by chamber summons dated 4th February, 2008.
Dated and delivered at Mombasa this 20th day of March 2008
L. NJAGI
JUDGE