[2018] KEHC 699 (KLR)
The court allowed the withdrawal of the application dated 15/11/2018 by the applicant, but in accordance with Order 25 Rule 2(2) of the Civil Procedure Rules, awarded costs to the respondents. The court further found that the cause of action arose in Nairobi and the application ought to have been filed there....
Source-derived case information.
- Citation
- [2018] KEHC 699 (KLR)
- Parties
- Applicant: NIC Bank PLC; Respondent: William Kipkoriri Arusei; Respondent: Gathogo t/a Valley Auctioneers; Respondent: Empro Electrical & Mechanical Engineers Company Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 306 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Withdrawal and Costs
- Outcome
- application withdrawn with costs to respondents; payment and release order issued
- Judges
- CA Otieno
- Legal Topics
- Withdrawal of Application, Costs Award, Hire Purchase Dispute, Repossession of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
NIC Bank PLC
Applicant
William Kipkoriri Arusei
Respondent
Gathogo t/a Valley Auctioneers
Respondent
Empro Electrical & Mechanical Engineers Company Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Withdrawal and Costs
Legal Issues
- 1 Whether the application dated 15/11/2018 should be allowed to be withdrawn and on what terms.
- 2 Whether the costs should be awarded to the respondents upon withdrawal of the application.
- 3 Whether the dispute over repossession and outstanding hire purchase amount should result in a specific payment and release order.
Ratio Decidendi
The court allowed the withdrawal of the application dated 15/11/2018 by the applicant, but in accordance with Order 25 Rule 2(2) of the Civil Procedure Rules, awarded costs to the respondents. The court further found that the cause of action arose in Nairobi and the application ought to have been filed there. Recognizing the outstanding hire purchase balance of Kshs.500,000 and the provisions of the Consumer Protection Act, the court ordered the third respondent to pay the outstanding sum to the applicant bank, upon which the repossessed motor vehicle should be released to the third respondent forthwith.
Court Disposition
application withdrawn with costs to respondents; payment and release order issued
Orders
- The application dated 15/11/2018 is marked as withdrawn.
- Costs are awarded to the respondents pursuant to Order 25 Rule 2(2).
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC. CIVIL APPLICATION NO. 306 OF 2018
NIC BANK PLC...................................................................APPLICANT
VERSUS
1. WILLIAM KIPKORIRI ARUSEI
2. GATHOGO T/A VALLEY AUCTIONEERS
3. EMPRO ELECTRICAL & MECHANICAL
ENGINEERS COMPANY LIMITED..........................RESPONDENTS
R U L I N G
1. With the request to withdraw the application dated 15/11/2018 this court cannot stand on the way of the Applicant. The same is marked withdrawn but pursuant to Order 25 Rule 2(2) the costs are awarded to the Respondents.
2. It having come to the attention of the court by papers filed that the parties are in dispute over a repossession carried out in Nairobi, that to this court was the cause of action and this application ought to have been filed in Nairobi.
3. Additionally, it has come to the attention of the court by papers filed that the hire purchase agreement was for Kshs.5,088,000/= and only about 500,000/= was outstanding at the date of repossession and being cognizant of the provisions of Consumer Protection Act, I direct that Ms. Empro Electrical & Mechanical Engineers Co. Ltd, 3rd Respondent pays to the bank the sum of Kshs.500,000/= upon which payment the motor vehicle be released to it forthwith.
4. It is so ordered.
Dated and delivered at Mombasa on this 18th day of December 2018.
P.J.O. OTIENO
JUDGE