[2014] KEHC 6268 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 281 OF 2009

PARTICK KINYUA MUNYITO ……………….…..…………………PLAINTIFF/RESPONDENT

-VERSUS-

FRANCIS MURIUKI MURAGURI……………..…..………….1ST DEFENDANT RESPONDENT

BERNARD GATHUGU………………..…...………..…………2NDDEFENDANT RESPONDENT

NIC BANK……..……………………………..………………..3RDDEFENDANT RESPONDENT

RULING

Before me are 2 notice of motions one is dated 1/7/13 filed by the plaintiff. The application is brought under section 1A, 1B & 3A of the Civil Procedure Act Cap 21 Laws of Kenya Order 51 rule 1 of the Civil Procedure Rules.

The applicant seeks the following orders.

That the plaintiffs do have the sanction this court to use the motor vehicle Registration No. KAV 428 F Mitsubishi Fuso lorry until the hearing and determination of this consolidated suit.

Those costs of this application be provided for.

The application is based on the grounds that; the applicant had purchased the said lorry from the 1st defendant and paid the entire purchase price. However the same was repossessed unlawfully repossessed by the 1st respondent who sold it to the 2nd respondent even after an injunction issued to restraining him from disposing the said motor vehicle. That in this suit he seeks the nullification of the sale to the 2nd defendant and damages for loss of user. That the orders he is seeking in this application are to mitigate loss and damage as the lorry continues to waste and depreciate in value and there is real risk that both parties will lose. He is apprehensive that the matter will not be heard any time soon since Justice Khaminwa had since left the bench and court had prioritized election petitions.

The application is further supported by an affidavit sworn by Patrick Kinyua Munyito of 1st July 2013 in which he deposes that he had entered into a sale agreement with the 1st defendant for the sale of the said lorry for KShs.4,100,000/-, the motor vehicle was registered in the names of the 1st respondent and the log book was being held by the NIC bank who had financed its purchase. The terms of agreement was that he would take over the loan amount of Kshs. 1,600,000/- and pay the balance of Kshs.2, 500,000. That after paying the deposit of Kshs.2,500,000/- and finalizing paying the outstanding loan at NIC bank on 15th January, 2005 the 1st respondent forcefully repossessed the same and attempted to trade it in. He was unaware who had taken the vehicle and proceeded to report it stolen at Buru Buru police station. The he later learnt that the 1st defendant had obtained orders compelling the O.C.S Buru Buru to release the vehicle to him. It was after the 1st Defendant’s failure to release the vehicle that he proceeded to file an application and obtain interlocutory injunction on 28th May, 2009 ordering the defendant to restrain himself and/or his agent from transferring, charging or otherwise dealing with the motor vehicle registration KAV 428/F Mitsubishi Fuso, pending inter-partes hearing on 11/6/2009 and the same served on the defendant. The application was heard inter-partes before Hon. D. Onyancha on 8th July and ruling reserved for 24th September, 2009. That despite the order the 1st defendant sold the said motor vehicle to the 2nd defendant and this prompted the applicant to institute HCCC No. 525 of 2009 on 7th October 2009 seeking to nullify the sale of the said lorry to the 2nd Defendant and that the matter was part heard before Justice Khaminwa. That the defendant had since filed an application dated 29th September, 2011 seeking to subject some documents to forensic investigation and the same is yet to be heard and determined. He urged the court to allow him use the said vehicle pending the determination of this matter.

The respondent opposed the motion and filed grounds of opposition dated 16th November, 2013 . In the grounds he has challenged the competence of the applicant’s application and also pointed out that the applicant had withdrawn similar application on 23rd March, 2011, that the same is a waste of judicial time since all the parties and that the court have agreed that this is a complex matter which could not be urged as the evidence is weighty. That granting the said orders would amount to final orders being granted before even parties have tendered their evidence in this complicated and protracted suit, that the matter is part heard the respondent having produced documents in support of his case as such the hearing should proceed that the court should dismiss the applicant’s application and order the parties to fix the case for hearing.

The 1st respondent’s application is dated the 25th February 2012. The application is brought under section 1A, B, C, 3A order 11 (2) (o) (III) 18 rule 11, 51 (1) of the Civil Procedure Code. The applicant seeks the following orders;

That documents numbered pages 1,2 and 3 in the Plaintiff’s list of documents filed on the 21st of October , 2011 be subjected to forensic document examination by handwriting experts in the Kenya Police – CID headquarters to authentify the alleged signature of the 1st defendant.

That there be a stay of proceedings in the matter to await the result of their request

That costs of the application be provided for.

The application is supported by grounds on the face of the application and the affidavit of Francis Muriuki Muraguri. The grounds are that;

That the 1st defendant has always denied that he appended his signature in the documents referred to as agreement of sale, acknowledgement of receipt of Shs. 2. 5 million and letter dated 12/05/2008.

That the matter is coming up for hearing on 28th May 2012 when the Plaintiff shall be cross-examined and it is risky for him to continue producing and relying on documents that have been termed as fraudulent.

That the 1st defendant is within his rights to demand for a thorough scrutiny of the said documents before they can be admitted as evidence.

Mr. Francis Muriuki Muraguri deposes in his affidavit that the plaintiff has produced and or shall produce an agreement for transfer of ownership, acknowledging and acceptance letter all dated 12th May 2008 purporting that that he signed the said documents. That he has along stated that the said documents are forgeries and he has written a letter protesting about the said documents which he served on all the parties. That the plaintiff is seeking to rely on documents which are forgeries and as such he seeks for the truth to be known before the matters proceeds. That he wants the police to investigate the said documents before the matter can proceed further.

The application came for inter partes hearing on 18th November, 2013. Parties made oral submissions in court. Mr. Wanjohi for the 1st Respondent submitted that when the matter come up for hearing and the applicant adduced a bundle of documents which the respondent objected stating the same were not genuine. That they are saying that the said documents are forgeries hence that application. That once the documents are in the bundle the Court will assume that they are okay. On the plaintiff’s application he argued that the that should the orders sought be granted the entire suit will collapse. He sought dismissal of the applicant’s application and relied on the ground of opposition his of opposition dated 15/11/2013.

Mr. Gacheru for the plaintiff submitted that for the application dated 25/5/2013 they would rely on the replying affidavit dated the 20th July 2012 sworn by Patrick Kinyua. He submitted the same was an abuse of the court process. That when the matter was being heard an objection had made and he was due to respond. He argued that the 1st respondent was seeking to bring in new evidence and the same was an attempt to open pre-trials as the same had been concluded before Justice Rawal. He added that this being a civil case where the balance of proof is on a balance of probabilities and so forensic evidence has no place and that there is cross examination plus materials that would help the court determine if the documents are okay. That on the 8/6/09 the 1st defendant indicated that he had reported the matter to the police. That the plaintiff has not been summoned and so the 1st respondent could peruse the documents. He added that we have is an adversarial system in place and he sought dismissal of the grounds raised in the application. In regards to the application dated 1/7/2013, he submitted that his client was seeking to be allowed to use the vehicle. He reiterated the grounds in the face of the application and the plaintiff’s supporting affidavit. He submitted that the application was merited and urged the court to allow the application. He added that the plaintiff would be seeking cancellation of title and loss of user and granting the application will not compromise the suit. He also added that the application was not opposed by the 2nd and 3rd defendants.

Mr. Gachimo for the 2nd defendant asked the court to adopt its replying affidavit sworn on 30/3/11 plus their written submissions filed on 12/7/2011. He submitted that the applicant’s application was mischievous as he had admits to have impounded the vehicle from the 2nd defendant for safe keeping and has filed the application to give sanctity to an act of illegality. That the 2nd defendant did not disobey the court order and the same was issued on 16/12/2010 while the vehicle was impounded on 8/12/2010 before he was served with the said order. He added that the order the applicant referred to was the one restraining the 2nd defendant and the interested parties from using the vehicle. That the same was not served nor does it allow with the plaintiff to impound the vehicle. That the vehicle is in the name of the 2nd defendant and the interested party. That 2nd defendant too has a counterclaim and seeks loss of user and it is the court who will decide who will pay the loss of user and that there should be no short cuts in the matter. He urged the court to dismiss the application with costs.

Miss Mburu for the 3rd defendant submitted that they would not be opposing the application dated 25th February 2012 and that they associate with the submissions of the 1st and 2nd defendant and sought that the application be dismissed with costs.

Mr. Gacheru in reply stated that the 3rd defendant did not file any documents to oppose the application. He further stated that Mr. Gichimo had misled the court. That the court order was not issued on the date counsel gave he asked the court to referred the court to record. That the respondents’ agree that there is an order to that effect. That the vehicle was transferred to the 2nd defendant yet there was a court order.

I have considered the affidavits filed by the parties the submissions made in court, and plus I have gone through the court record. This matter is a part heard of Justice Khaminwa she began hearing it on the 27/2/12. I note that she partly heard the evidence of the plaintiff. The plaintiff in his application seeks to be allowed to use the lorry the subject matter of this suit. Would this court allow him to do so yet the issue of ownership is pending? In my view granting the said order would cause prejudice to the other parties who are also claiming ownership of the vehicle. The plaintiff has waited all this along since 2009 for the matter to be heard. I do recognize that a vehicle is an asset which depreciates in value as time goes on, the best this court can do for the parties is to fast track the hearing of this suit so that the issue of ownership is resolved once and for all. I therefore decline to grant the orders sought by the plaintiff applicant in his application dated the 1st July 2013. Costs shall be in the cause.

On the 1st defendant’s application, it is my view that if he wants the police to investigate the plaintiff’s documents then he should report the matter to the police and pursue the issue of forensic examination with the police. The court cannot be asked to get involved in investigating documents the plaintiff intends to rely on. It is he who alleges who must prove. Further the provisions of order 11 relate to pre-trial directions and conference. Order 11 rules (2) (o) (ii) provides for striking out of documents or part of it. Why didn’t the 1st defendant take up this issue at the pre-trial stage? I agree with Mr. Gacheru that 1st defendant is seeking to reopen a pre-trial in the matter yet the same was done and concluded before Justice Rawal. Order 18 rule 11 provides that the court may at any stage of a suit inspect any property or thing concerning which any question may arise. This court has not been asked to inspect the lorry the subject matter of this suit or the documents in question, it’s not an expert in that area , what the 1st defendant seeks is forensic examination of the documents the plaintiff seeks to rely on and I have given directions on what he should do. Order 18 rule 11 is therefore not of any help to the 1st defendant. Lastly the 1st defendant has failed to show this court why the suit should be stayed as we await the results of the forensic examination. For a suit to be stayed the applicant needs to demonstrate that he will suffer some prejudice or loss if the orders are not granted or that it necessary to do in the interest of justice for the benefit of all the parties. I therefore find no merit in the 1st defendant’s application dated the 25th of May 2012. It is dismissed. Costs shall be in the cause.

Orders accordingly.

Dated, signed and delivered this 5th day of February 2014.

R. E. OUGO

JUDGE

In the presence of:-

………………………………………………..............................................................For the Plaintiff

…………………………………………………………..………………….For the 1st Respondent

…………………………………………………..………...………………..For the 2nd Respondent

…………………………………………………………….……...…………For the 3rd Respondent

…………………………….………………………......................................……...………Court Clerk