[2023] KEHC 22946 (KLR)
The court found that as of August 3, 2023, when the 2nd respondent attached M/V KCL 583B, the applicants had not complied with the court order to deposit the decretal sum. The attachment was therefore lawful. The auctioneer, having acted within the law, is entitled to his charges and storage costs. The court ordered...
Source-derived case information.
- Citation
- [2023] KEHC 22946 (KLR)
- Parties
- Applicant: Derrick Mutuma; Applicant: Newton Kiogora; Applicant: Eric Karia; Respondent: Fridah Gakii Mugwika; Respondent: Lifeline Auctioneers
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E078 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Chamber Summons Seeking Stay, Lifting or Setting Aside of Warrants of Attachment and Notification of Sale
- Outcome
- Application partially allowed; release of attached vehicle upon conditional payment.
- Judges
- TW Cherere
- Legal Topics
- Warrants of Attachment, Stay of Execution, Auctioneer Charges, Release of Attached Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Derrick Mutuma
Applicant
Newton Kiogora
Applicant
Eric Karia
Applicant
Fridah Gakii Mugwika
Respondent
Lifeline Auctioneers
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Chamber Summons Seeking Stay, Lifting or Setting Aside of Warrants of Attachment and Notification of Sale
Legal Issues
- 1 Whether the attachment of M/V KCL 583B was lawful in light of the applicants' compliance with the court order to deposit the decretal sum.
- 2 Whether the applicants are entitled to the release of M/V KCL 583B and under what conditions.
- 3 Whether the auctioneer is entitled to charges and storage costs for the attachment.
Ratio Decidendi
The court found that as of August 3, 2023, when the 2nd respondent attached M/V KCL 583B, the applicants had not complied with the court order to deposit the decretal sum. The attachment was therefore lawful. The auctioneer, having acted within the law, is entitled to his charges and storage costs. The court ordered that pending determination of the auctioneer's charges and storage costs, the vehicle should be released to the applicants upon payment of KES 50,000 to the 2nd respondent. This sum is to be paid as a condition for release, with the final amount of charges to be taxed if not agreed upon by the parties.
Court Disposition
Application partially allowed; release of attached vehicle upon conditional payment.
Orders
- 2nd respondent shall release M/V KCL 583B to the applicants upon payment of KES 50,000.
- Auctioneer's charges and storage costs to be determined by taxation if not agreed upon by the parties.
Full Case Text
Judgment text and source record
27 paragraphs
Mutuma & 2 others v Mugwika & another (Miscellaneous Civil Application E078 of 2023) [2023] KEHC 22946 (KLR) (28 September 2023) (Ruling)
Neutral citation: [2023] KEHC 22946 (KLR)
Republic of Kenya
In the High Court at Meru
Miscellaneous Civil Application E078 of 2023
TW Cherere, J
September 28, 2023
Between
Derrick Mutuma
1st Applicant
Newton Kiogora
2nd Applicant
Eric Karia
3rd Applicant
and
Fridah Gakii Mugwika
1st Respondent
Lifeline Auctioneers
2nd Respondent
Ruling
1. By chamber summons application dated August 17, 2023, Applicants seek orders that the court be pleased to stay, lift and or set aside the warrants of attachment dated July 14, 2023 and the notification of sale dated August 3, 2023 and unconditional release of M/V KCL 583B.
2. The application is supported bya n affidavit sworn on August 17, 2023 by Orina Moraa in which it is averred that the 2nd respondent had attached M/V KCL 583B even after applicants deposited KES. 434,344/- as ordered by the court on July 25, 2023.
3. 2nd respondent stated that after applicants failed to comply with the the court of July 25, 2023 requiring them to deposit the decretal sum in court, he attached M/V KCL 583B on August 3, 2023 and a week later learnt that Applicants had complied with the court order on August 10, 2023. The deponent urged that he was ready to release the motor vehicle upon payment of his charges and storage charges.
4. I have considered the chambers summons in the light of affidavit evidence on record. It has been demonstrated that as at August 3, 2023 when 2nd respondent attached M/V KCL 583B, applicants had not deposited the decretal sum with the court as ordered on July 25, 2023.
5. From the foregoing, I find that the attachment of attached M/V KCL 583B was lawfully executed and 2nd respondent as an auctioneer is entitled to his charges which ought to be taxed if not agreed upon by the parties.
6. Pending determination of the 2nd respondent’s charges and storage costs, it is hereby ordered that 2nd respondent shall release M/V KCL 583B to Applicants upon payment to him of KES. 50,000/- (fifty thousand).
DATED AT MERU THIS 28THDAY OF SEPTEMBER 2023. WAMAE. T. W. CHEREREJUDGEAppearanceCourt Assistant - Morris KinotiFor Applicant - Mr. Wambua for Kimondo Gachoka & Co. AdvocatesFor Respondent - Mr. Gikunda for Gikunda Anampiu & Co.Advocates