[2012] KEHC 2637 (KLR)
The court found that the auctioneer had not complied with the consent order to release the balance of the sale proceeds to the advocates for the judgment debtor. Since the application was unopposed and the consent order was clear, the court granted the substantive prayer sought. However, considering the large sum...
Source-derived case information.
- Citation
- [2012] KEHC 2637 (KLR)
- Parties
- Plaintiff: Peter Maina Ndegwa; Defendant: Arthi Highway Development Co. Ltd
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Judgment Date
- 11 July 2012
- Case Number
- Civil Case 105 of 2010
- Procedural Posture
- Civil Case / Ruling on Notice of Motion for Release of Sale Proceeds
- Outcome
- Application granted in part; prayer 2 allowed with modification of time for compliance.
- Judges
- GMA Dulu
- Legal Topics
- Execution of Judgment, Consent Orders, Auction Proceeds, Transfer of Property
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Peter Maina Ndegwa
Plaintiff
Arthi Highway Development Co. Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion for Release of Sale Proceeds
Legal Issues
- 1 Whether the auctioneer should be ordered to deposit the balance of the sale proceeds with the advocates for the judgment debtor as per the consent order.
- 2 Whether the time frame for depositing the funds should be extended beyond three days.
Ratio Decidendi
The court found that the auctioneer had not complied with the consent order to release the balance of the sale proceeds to the advocates for the judgment debtor. Since the application was unopposed and the consent order was clear, the court granted the substantive prayer sought. However, considering the large sum involved, the court exercised its discretion to extend the period for deposit from three days to seven days to ensure practical compliance. Costs were ordered to be in the cause as they were not specifically sought by the applicant.
Court Disposition
Application granted in part; prayer 2 allowed with modification of time for compliance.
Orders
- The auctioneer KANGERI WANJOHI T/A KINDEST AUCTIONEERS shall deposit the balance of the sale proceeds, being Kshs. 25,614,000, with the advocates for the judgment debtor within seven (7) days from the date of this ruling.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATMACHAKOS
CIVIL CASE 105 OF 2010
PETER MAINA NDEGWA …………………….…………...…… PLAINTIFF/DECREE-HOLDER
VERSUS
ARTHI HIGHWAY DEVELOPMENT CO. LTD…................ DEFENDANT/JUDGMENT-DEBTOR
R U L I N G
On 16th January 2012 a consent was entered before the Deputy Registrar in the following terms:-
1. The Chamber Summons dated 15/12/2011 be and is hereby certified urgent.
2. The Deputy Registrar to execute the transfer on behalf of the judgment Debtor to effectively vest ownership of Land Reference Number 7149/115 (IR 114440) to the purchaser.
3. The Auctioneer be and is hereby allowed to pay the decretal sum to the judgment creditor and the balance thereof to the advocate for the judgement debtor.
4. That costs be in the cause.
The formal order of the consent was signed by the Deputy Registrar on 18th January 2012.
Following the making of the above consent order, the judgment debtor Arthi Highway Developers Ltd has now come to court through a Notice of Motion dated 24th February 2012, filed by their counsel Njeru Nyaga & Company. The Notice of Motion was brought under Order 40 Rule 1 and Order 50 of the Civil Procedure Rules as well as section 1A, 1B, 3A and 48 of the Civil Procedure Act (Cap 21). It has four prayers. However, at the hearing of the application, Mr Nyaga, for the judgment-debtor stated that his client was interested only in substantive prayer 2 of the application, as they no longer wanted attachment of the account. Prayer 2 is as follows:-
“2. That the Honourable Court be pleased to order the Auctioneers KANGERI WANJOHI T/A KINDEST AUCTIONEERS to deposit the balance of the sale proceeds being Kshs.25,614,000/= with the advocates for the judgment debtor within 3 days.”
Counsel argued that though the application was served, neither the auctioneers nor their counsel responded. Counsel contended that, though the auctioneers complied with part of the consent of January 16th 2012 by releasing the decretal amount, they failed to comply with the limb of releasing the balance to the advocates for the judgment debtor as ordered.
Since the application is not opposed, I will grant the prayer. However, I am of the view that 3 days is too short for deposit of such a large amount of money. I will therefore, order that the amount be released within seven (7) days. As the counsel for the judgment debtor has not urged costs, I will order that costs be in the cause.
Consequently, I grant prayer 2 of the application dated 24th February 2012, but the amount will be deposited within seven (7) days from today’s date.
It is so ordered.
Dated and delivered this 11thday ofJuly 2012.
………………………………………
George Dulu
Judge
In the presence of:
Nyalo – Court clerk
N/A for respondent.