[2022] KEHC 14528 (KLR)

Muturi v Awiti t/a Skigate Auctioneers & 2 others (Judicial Review E002 of 2022) [2022] KEHC 14528 (KLR) (19 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14528 (KLR)

Republic of Kenya

In the High Court at Kiambu

Judicial Review E002 of 2022

RB Ngetich, J

October 19, 2022

IN THE MATTER OF THE LAW REFORM ACT CHAPTER 26, THE LAWS OF KENYA AND IN THE MATTER OF THE CIVIL PROCEDURE RULES 2010 AND IN THE MATTER OF ARTICLE 47 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF THE CHIEF MAGISTRATE’S COURT AT THIKA MISCELLANEOUS CIVIL APPLICATION NO E109 OF 2021 BETWEEN JOHN STANLY AWITI T/A SKIGATE AUCTIONEERS AND MOMBASA KHUSHI MOTORS COMPANY LIMITED VERSUS MERCY WARIARA MUTURI AND IN THE MATTER OF A RULING OF THE SENIOR RESIDENT MAGISTRATE SITTING IN THIKA ON 1ST DECEMBER 2021 AND IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS

Between

Mercy Wariara Muturi

Applicant

and

John Stanly Awiti t/a Skigate Auctioneers

1st Respondent

Mombasa Khushi Motors Company Limited

2nd Respondent

Senior Resident Magistrate Thika

3rd Respondent

Ruling

1. By the Chamber Summons dated March 3, 2022, and filed on March 4, 2022, the applicants seek the following orders:-a.Spenti.That leave do issue for the Applicant to apply for an order of certiorari to move into the court and quash the order dated December 1, 2021 issued by the Honourable Senior Resident Magistrate Thika, the 3rd Respondent herein.ii.An order of prohibition directed at the 1st and 2nd Respondent from proceeding and pursuing the realization of the impugned court order issued on the December 1, 2021. iii.An order of prohibition against the 1st and 2nd Respondents, their agents and/ or servants from selling, leasing, or in any way dealing with the Motor Vehicle Registration Number KCL 922G pending hearing and determination of this application.iv.An order of mandamus compelling the 1st and 2nd Respondents to release, surrender and /or return to the Applicant, the Motor Vehicle Registration number KCL 922G, which vehicle is currently in the custody and/or possession of the 1st and 2nd Respondent.v.An order of mandamus directed to the Honourable Senior Resident Magistrate Thika to compel the said Honourable Magistrate to withdraw and/or cancel the court order issued on the December 1, 2021 and its consequences thereto against the applicants.b.That the honourable court is at liberty to make such further and other orders as it deems fit to meet the end of justice.c.That costs of this application be provided for.

2. The said motion is grounded on a statement of facts and supported by a verifying affidavit sworn by Mercy Wariara Muturi the Applicant herein on March 3, 2022.

3. The Applicant averred that the Notice of Motion dated November 23, 2021 by the 1st and 2nd Respondent was never served upon the applicant and the court proceeded to grant the orders ex-parte at the detriment of the applicant and stated that trial court erred in issuing ex-parte orders in Misc App No E019/2021 without considering the pending Kiambu High Court Appeal No 188 of 2017 between the applicant and the 2nd Respondent.

4. The Motor Vehicle KCL 922G has been repossessed and is on the verge of being sold, the applicant stands to suffer irreparable harm and loss.

5. The application to grant leave to file judicial review was opposed by the Respondents who submitted the orders seeking to be quashed have been executed and the motor vehicle sold to other third parties as evidenced by the Replying Affidavit of Waqas Ahmed sworn on May 23, 2022, it was deponed the applicant entered into a sale agreement for the sale and purchase of Motor Vehicle KCL 922G at a cost of Kshs 5,600,000. The applicant paid a deposit of Kshs 2,300,000/= at the time of the agreement and left a balance of Kshs 3,300,000/=. The balance was liquidated to monthly instalments of Kshs 210,000/= which the applicant failed to pay.

6. The applicant had dismembered the tracking device and hidden the Motor Vehicle, before the Motor Vehicle was impounded the applicant filed Thika CMCC No 668 of 2017 and obtained restraining orders against the 2nd Respondent and the auctioneer from repossessing the same. The injunction issued lapsed a year after it was granted. He further stated the 2nd Respondent is entitled to recover the balance of the purchase price and should not be held in abeyance.

7. He further disposes the applicant had offered for sale the Motor Vehicle in dispute without the knowledge of the 2nd respondent. The applicant has committed fraud and changed the ownership details at the NTSA portal.

8. The orders issued by the trial court sought the assistance of the police officers in impounding the motor vehicle, the said orders were obtained and executed and thus cannot be quashed.

9. The 2nd respondent who is the rightful owner of the Motor Vehicle be allowed to recover the balance of the purchase price by reselling the Motor Vehicle. He went ahead to state that the Motor Vehicle had already been sold to a third party as per the amended record and the sale agreement and this court not to allow the reliefs sought in the interest of justice.

10. Directions were taken to have the parties file written submissions. Only the applicant complied.

Applicant’s Submissions 11. Counsel Nyasani for the applicant filed their submissions on July 15, 2022, he submitted that the issue for determination is whether the court should grant the applicant leave to file the substantive motion for the orders of certiorari, prohibition and mandamus.

12. Counsel submitted that the applicant was unrepresented in the impugned ruling issued ex-parte by the Thika Chief Magistrate in CMCC no E109 of 2021 and there was no service of the notice of motion and orders made without service is a nullity.

13. Counsel contended the Respondent failed to inform the court of the existence of Thika Civil Suit No 668 of 2017 which had issued injunctive orders to preserve the Motor Vehicle Registration No KCL 9222G; that the said orders remained in force at the time of filing MiscApp No E109 of 2021 and the Respondents are therefore in contempt of a valid court order and the failure to disclose is offensive and an abuse of the court process.

14. Counsel further submitted that the applicant has an arguable case in favour of granting the reliefs sought and the 3rd Respondent acted ultra vires in purporting to interfere with the orders issued in Civil Suit No 668 of 2017.

15. That there is a risk of the substantive judicial review application being rendered nugatory if the Motor Vehicle has been disposed off and prayed for an order of surrender and/or return of the Motor Vehicle KCL 922G by the Respondent pending the hearing and determination of the substantive motion as orders of restitution will put the applicant into the position she was in before the ex-parte orders in Misc E109 of 2021.

16. Counsel prayed that the leave sought herein does operate as a stay of execution for the preservation of the Motor Vehicle KCL 922G; that if the orders are granted the Respondents stand to suffer no prejudice while the applicant will suffer unjustified irreparable loss and damage as he may not be able to recover the loss suffered.

17. Counsel urged the court to allow the application and grant leave to the applicant to file the substantive motion.

Analysis and Determination 18. I have considered the application, the statutory statement and verifying affidavit, the Respondent’s replying affidavit and the submission by the parties. The issue for determination is whether the applicant has met the threshold for granting leave to apply for a judicial review application.

19. From the record, the applicant purchased the Motor Vehicle KCL 922G from the 2nd Respondent at Kshs 5,600,000/= . She paid a deposit of Kshs 2,300, 000/= leaving behind a balance of Kshs 3,300,000/= which is still unpaid to date. The applicant filed Thika Civil Suit No 668 of 2017 in which she obtained injunctive orders against the 1st and the 2nd Respondent for repossessing the Motor Vehicle.

20. The 2nd Respondent submitted that the applicant failed to pay monthly instalment of Kshs 210,000/=, fell into arrears and dismembered the car track and offered the car for sale to other 3rd parties to defeat the interest of the 2nd Respondent. The 2nd Respondent filed Suit E109 of 2021 seeking the repossession of the Motor Vehicle which was granted. Counsel for the 2nd Respondent submitted the Motor Vehicle was repossessed and sold to a third party.

21. On the other hand, the applicant submitted that she was not served with the notice of motion dated November 23, 2021 and the court proceeded to grant the orders ex-parte to her detriment and submitted that the trial court erred in issuing ex-parte orders in Misc App No E019/2021 without considering the pending Kiambu High Court Appeal No 188 of 2017 between the applicant and the 2nd Respondent. Further, the Motor Vehicle KCL 922G has been repossessed and is on the verge of being sold and she stands to suffer irreparable harm and loss.

22. It is upon the orders issued in Thika Chief Magistrate Case No E 109 of 2021 that the applicant seeks to leave to file judicial review orders. In the case of Republic v Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] eKLR it was held as follows:-“the remedy of judicial review is concerned with reviewing not the merits of the decision of which the application for judicial review is made, but the decision making process itself. It is important to remember in every case that the purpose of the remedy of Judicial Review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of the JR 3 OF 2021 PAGE 59| 82 individual judges for that of the authority constituted by law to decide the matter in question. Unless that restriction on the power of the court is observed, the court will, under the guise of preventing abuse of power, be itself, guilty of usurpation of power”.

23. The applicant defaulted in the payment of the balance towards the purchase of Motor Vehicle KCL922G, she obtained orders against the 2nd Respondent from repossessing the same and failed to make any further payments. The conduct of the ex-parte applicant of failing to pay the balance, dismembering the car track and offering the Motor Vehicle for sale without the consent of the 2nd Respondent amounted to deceit and fraud.

24. The 3rd Respondent, a Resident Magistrate at Thika issued the orders of December 1, 2021 to the 2nd Respondent to repossess the Motor Vehicle and sell. The said orders were complied with. The 3rd Respondent acted within her powers and granted the orders as sought by the 2nd Respondent. It has not been proved that the 3rd Respondent in granting such orders acted in an irrational or illegal manner.

25. The trial court granted orders to repossess the Motor Vehicle for non-payment, the ex-parte applicant had also obtained similar orders against the 2nd Respondent in their absence to retain the Motor Vehicle despite non-payment. The conduct of the applicant negates the common law maxim of he who comes to equity must come with clean hands. The ex-parte applicant obtains the orders in Thika Civil Suit No 668 of 2017.

26. The Motor Vehicle in question has already been repossessed and the same sold, therefore the orders of certiorari and prohibition being sought by the ex-parte applicant will be issued in vain. The court of law orders should not be issued in vain.

27. From the foregoing I find that the exparte applicant is not deserving leave to file substantive motion and the chamber summons dated March 3, 2022 is hereby dismissed.

Final Orders; 281. Application dated March 3, 2022 is hereby dismissed.2. I hereby decline to grant the exparte applicant leave to file substantive motion.3. Costs to Respondents.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBU THIS 19TH DAY OF OCTOBER, 2022………………………………RACHEL NGETICHJUDGEIn the Presence of:Kinyua/Martin – Court AssistantMr Omariba for 1st and 2nd RespondentsMr Bore holding brief for Nyasani for Applicant