[2022] KEHC 12159 (KLR)

Nyambane v Ndege & 4 others (Civil Appeal 259 of 2011) [2022] KEHC 12159 (KLR) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12159 (KLR)

Republic of Kenya

In the High Court at Kisii

Civil Appeal 259 of 2011

REA Ougo, J

July 14, 2022

Between

Hezron Otochi Nyambane

Appellant

and

Julius Momanyi Ndege

1st Respondent

Patrice Mulei Alunga

2nd Respondent

Alfred Mdeizi t/a Pave Auctioneers

3rd Respondent

Ayiema Mbicha & Co. Advocates

4th Respondent

Evans Enkonge Alunga

5th Respondent

Judgment

1. The background leading to this appeal is a road traffic accident between motor vehicle Registration no. KAU 338B owned by the 1st respondent and motor vehicle Registration no. KAA 041R belonging to the appellant. The 1st respondent suffered loss as a result of the accident and sought general and special damages. The trial court arrived at a finding in favor of the 1st respondent and there was no appeal preferred against the judgment. The 1st respondent proceeded with execution motor vehicle registration no. KAA 041R. Despite the sale of motor vehicle registration no. KAA 041R the proceeds did not satisfy the whole decree and costs of the auctioneer. The 1st respondent instructed the 3rd respondent to attach and sell Motor Vehicle Registration No. KAH 242 L Mitsubishi Lorry for the settlement of the decree and the 3rd respondent’s costs.

2. Following the attachment of Motor Vehicle Registration No. KAH 242 L Mitsubishi Lorry by the 3rd respondent, the appellant filed a notice of motion dated 4th October 2010 before the lower court seeking the following reliefs: 3. THAT this Honourable Court be pleased to direct that Motor Vehicle Registration No. KAH 242 L Mitsubishi Lorry currently held and detained by the D.C.I.O Migori Division do remain in his custody pending the hearing and determination of this application interpartes.OR

4. Or in alternative this Honourable Court be pleased to direct that Motor Vehicle Registration KAH 242L be released to the applicant on a running attachment pending the hearing and determination of this application interpartes.

5. That Miscellaneous Civil Application 67 of 2009 in the Chief Magistrate’s Court at Kisii be consolidated herein for purpose of this application.

6. That the purported sale of Motor Vehicle Registration No. KAH 242L Mistubishi Lorry by M/s Pave Auctioneers to Patrice Alunga be declared null and void.

7. That this court be pleased to review its orders given in Kisii CM Misc. Application No 67 of 2009.

8. That Motor Vehicle Registration No. KAH 242L Mistubishi Lorry be released to the applicant as the true and actual owner.

3. It was advanced by the appellant that on 10th February 2009 his motor vehicle registration no. KAA 041R was irregularly attached and sold in an execution of decree. The appellant averred that his insurer had failed to timely pay the decretal sum and he instituted a suit against it – CMCC NO 238 OF 2009. While the suit was pending before court, his other motor vehicle KAH 242 L was attached without proclamation. He made an application seeking for the release of the said motor vehicle and also sought stay of execution until the determination of CMCC NO 238 OF 2009 and the court directed that the vehicle be released to the appellant. The 1st respondent filed an application seeking for the orders of the release of the motor vehicle on a running attachment and furnished security for the due performance of the decree. However, he was informed by the officer in charge of Migori where the vehicle was held of an existing order requiring him to release the Motor Vehicle to another person purporting to be a purchaser. The appellant learnt that the 2nd respondent had filed a KISII CM Misc Application No 67 of 2009 and obtained ex-parte orders that the registrar of motor vehicles do transfer, register and issue a new Log Book for the vehicle to the 2nd Respondent. The appellant contends that he was never served with the order. He further applied to the subordinate court for orders compelling the purchaser, court broker and the advocate retained for the sale transaction of motor vehicle registration no. KAH 242L to return the said motor vehicle to Migori Police Station or the nearest Police Station pending the hearing of the application interpartes. The orders were granted but the 3rd and 4th respondents refused to release the vehicle until it was lawfully taken away from the 5th Respondent. The 5th respondent petitioned the high court seeking a declaration that the attachment and detention of the vehicle by the appellant and the police was unconstitutional but the petition was dismissed. He advanced that the transactions and acts of the 2nd, 3rd, 4th and 5th respondents should be declared null and void.

4. The auctioneer, the 3rd respondent herein, in opposing the application averred that he proclaimed the vehicle on 21st April 2009 after the appellant failed to settle the decree plus costs. The vehicle was towed to his yard on 29th May 2005 and scheduled for sale on 5th June 2009. The sale proceeded as intended and the vehicle was sold to the 2nd respondent. He issued him with an official receipt, certificate of sale and made returns to court vides the letter dated 10th June 2009. He was served on 25th June 2009 with an order dated 24th June 2009 requiring him to release the said lorry to the appellant. It was the 3rd respondent’s case that from the commencement of execution on 21st April 2009 to the finalization of the sale of the vehicle he was not served with any orders.

5. The 2nd respondent in opposing the application before the subordinate court deposed that following an advertisement in the Standard Newspaper on the 3rd June 2009, he saw that the sale of the vehicle had been scheduled for 5th June 2009. He attended the auction and was declared the highest bidder and paid a sum of Kshs 480,000/-.

6. The 5th respondent purchased the motor vehicle from the 2nd respondent and did not have any notice of any order affecting the sale of the motor vehicle/even any notice of a defective title.

7. The trial court upon considering the appellants notice of motion dismissed its claim and directed that the vehicle be released to the 5th respondent. The appellant dissatisfied with the finding of the subordinate court filed a memorandum of appeal on the following grounds:1. The learned magistrate erred in law and in in fact by making a finding which contradicted the ruling of the high court arising from the same transactions.

2. The learned magistrate failed to take into account and failed to consider the cumulative weight of her evidence by way of affidavits before her.

3. The learned magistrate misconceived the application before her and went ahead and to erroneously misapply the law and facts placed before her.

4. The learned magistrate failed to take into account and fully consider the material facts placed before her due to either incompetence or extraneous considerations.

5. The learned magistrate erred in law and in fact by dismissing the appellant’s application.

6. The learned magistrate erred in fact for completely disregarding the appellant’s affidavit and the annexture thereto, thereby occasioning a miscarriage of justice.

8. The appeal was heard by way of written submissions and the appellant, 2nd and 5th respondents complied with the court’s directions.

Analysis And Determination 9. I have considered the pleadings and evidence on record as well as the submissions of the parties. The only issue raised in this appeal is whether the attachment and sale was legal or not and whether the applicant established that he was entitled to the orders sought.

10. At the onset, the court notes that the 1st respondent is now deceased and there was no application by the appellant to have him substituted. The main parties in Kisii CMCC No 88 OF 2007 were the appellant who was the defendant and the 1st respondent, who was the plaintiff. There is no dispute that a judgment had been made in favor of the 1st respondent following a road traffic accident.

11. It is also not in dispute that the warrants of attachment were issued and the 3rd respondent proceeded to proclaim the appellant’s motor vehicle registration no. KAH 242L on 24th April 2009. The vehicle was seized by the 3rd respondent on 29th May 2009. The appellant filed an application on 2nd June seeking the release of the vehicle pending the hearing of the application interpartes. The trial court ordered the release of the vehicle to the appellant. Following the order of 2nd June 2009, the 1st respondent filed an application for stay of the orders granted on 2nd June 2009 and the order staying release of the motor vehicle to the appellant were issued on 3rd June 2009 pending interpartes hearing.

12. The appellant argued in its submissions that the stay of the orders of 2nd June 2009 on 3rd, June 2009 did not vacate the earlier orders of the court. The appellant also cited the Court of Appeal decision in Civil Appeal No 77 of 2003 in Court of Appeal Judicial Service Commission of Inquiry to the Goldenberg Affairs & Others v Job Kilach where it was stated that:“I have said ex-parte Orders are provisional in nature. They are made by the judge on the basis of the evidence ad submissions emanating from one side only……He expects at a later stage to be given an opportunity to review its provisional Orders in light of evidence and arguments adduced by the other side…”

13. The 1st respondent through its agent, the 3rd respondent ought not to have proceeded with the auction until the interpartes scheduled for 16th June 2009. This would have given the magistrate an opportunity to appraise the evidence presented to it by each of the parties. Considering the orders of the court issued on 2nd and 3rd June 2009, I find that the sale was therefore unlawful.

14. Which party is liable for the wrongful attachment? The 1st respondent knew of the orders issued by the subordinate court on 2nd and 3rd June 2009, he however failed to serve the same on its agent, the 3rd respondent. The 1st Respondent and Appellant herein were parties in the primary suit and the Auctioneer was an agent of the 1st Respondent herein when he attached the motor vehicle owned by the Appellant. The court inDavid Njuguna Ngotho v Family Bank Limited & another[2018] eKLR awarded Kshs 7,000,000/- for wrongful and illegal attachment, loss of business opportunities and substantial loss against the principal (the bank) noting that the auctioneer acted on the instructions of the bank. The court observed as follows:“Basically, the issue that arises for determination under this limb is whether attachment and sale in so far as it related to the plaintiff was proper lawful because ideally the execution process which gave birth to this matter was targeted at Elizabeth Njeri Ngigi, the Third Party in this matter. There was no doubt that the 2nd Defendant acting for and on behalf of the 1st Defendant was authorised to effect the repossession and sale of the Third Party’s movable property that she provided as collateral to the 1st Defendant. And it is not in dispute that 2nd Defendant did the same pursuant to the instructions issued by the 1st Defendant. There is also no doubt that the right and authority to instruct the 2nd [defendant]to repossess the stock was to be lawful only if the plaintiff was a party to the loan agreement entered into by the Third Party and the Defendant Bank or if it had effected on the Third Party’s Property. The instruction letter written by the 1st Defendant to the 2nd Defendant instructing them to repossess and sell assets towards loan recovery bore the names of the Third Party. As established earlier, it must be made crystal clear that the properties attached by the 2nd Defendant did not belong to the 3rd Party as she was not the true owner of the same. In the same respect, it is the court’s finding that the goods and tools of trade seized were unlawfully attached that the defendants actually trespassed into the Plaintiff’s business premises after which they wrongfully deprived the Plaintiff of his property and later sold the same.Whether there was a principal/agent relationship and is the principal liable for acts agents.There is no doubt whatsoever that there existed a principal/agent relation between the 1st Defendant and the 2nd Defendant (Twinstar Auctioneers). This is evidenced by the notification of sale of the movable property, instruction letter instructing them to repossess and sell assets towards loan recovery and the proclamation of attachment. All these prove the fact that the 2nd Defendant was acting under the authority of the 1st defendant. Bowstead and Raynolds on Agency Seventeen Edition, Sweet and Maxwell, at page 1-001 defines an agent-principal relationship as a relationship which exists between two persons, one whom expressly or impliedly consents that the other should act on his behalf so as to affect his relationship with third parties, and the other of whom similarly consents so to act or so acts.”

15. The 3rd respondent was acting under authority of the 1st respondent and if at all there were any orders prohibiting the sale, the 1st respondent ought to have informed its agent. The 3rd respondent in its affidavit evidence which was not challenged averred that it was not served with the orders of 2nd and 3rd June 2009.

16. The 2nd and 5th respondents also submitted that the appellant ought to have filed a separate suite seeking damages and called into aid the case of Jacob Ochieng Muganda v Housing Finance Company of Kenya Limited [2002] eKLR where the Court of Appeal held as follows:“The property was knocked down at a public auction. If there was any irregularity in the conduct of the auction the applicant would be entitled for damages against the auctioneer pursuant to section 26 of the Auctioneers Act which provides that subject to the provisions of any other law, a person who suffers any special or general damages by the unlawful or improper exercise of any power of a licensed auctioneer shall be entitled to recover any damages directly suffered by him from the auctioneer by action.”

17. The 1st respondent was liable for the misfortunes that befell the appellant as it failed to inform the auctioneer of the existing court orders. Following the principle stated in David Njuguna Ngotho case (supra), I find that the appellant ought to have sued for wrongful attachment of his property. I agree with the finding of the trial magistrate who observed that it was too late in the day to reverse the auction process and that the appropriate relief that the appellant ought to have sought was that of damages. The vehicle had been sold to the 2nd respondent who later sold it to the 3rd respondent who were oblivious of any of the court orders.

18. In the end, I find that although the sale of the motor vehicle Registration No. KAH 242L was unlawful and that any orders for damages ought to have been directed at the 1st respondent, the appellant failed to make an application for substitution of the 1st respondent who has passed on. It is also worth noting that the appellant in its notice of motion dated 4th October 2010 did not seek for damages for illegal attachment. The appeal is thus hereby dismissed. There shall be no orders as to costs.

DATED, SIGNED AND DELIVERED AT KISII THIS 14TH DAY OF JULY 2022. R.E. OUGOJUDGEIn the presence of:Miss Nyaega For the AppellantMiss Cheloti h/b Mr. Nyangacha For the 2nd & 5thRespondentsMs. Aphline Court Assistant