[2025] KEELRC 754 (KLR)
The court found that the execution proceedings undertaken by the respondent and interested party were not justified under Section 94 of the Civil Procedure Act. As a result, any costs or storage charges arising from the execution, including those claimed by Blackbird Storage and Auction Yard Limited, cannot be...
Source-derived case information.
- Citation
- [2025] KEELRC 754 (KLR)
- Parties
- Applicant: Radar Limited; Respondent: Phoebe Mnavu Ngocho; Respondent: Apollo Roge Mghone; Respondent: Paul Matenge Mwadime; Respondent: Philip Ngayaya Mwakwenda; Respondent: George Malekwa Okoth; Respondent: Josiah Mriangulo Mwambingu; Respondent: Granton Mwarinda Mwamburi; Respondent: Karen Naliaka Wasike; Respondent: Winfred Baraka Mwakina; Interested Party: Joel Titus Musya T/A Makuri Auctioneers
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E076 of 2024
- Procedural Posture
- Miscellaneous Application / Ruling on Reference Regarding Storage Charges and Execution Costs
- Outcome
- Application allowed; applicant absolved from liability for storage and execution costs.
- Judges
- M Mbarũ
- Legal Topics
- Execution of Judgments, Costs and Expenses, Joinder of Parties, Unlawful Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Radar Limited
Applicant
Phoebe Mnavu Ngocho
Respondent
Apollo Roge Mghone
Respondent
Paul Matenge Mwadime
Respondent
Philip Ngayaya Mwakwenda
Respondent
George Malekwa Okoth
Respondent
Josiah Mriangulo Mwambingu
Respondent
Granton Mwarinda Mwamburi
Respondent
Karen Naliaka Wasike
Respondent
Winfred Baraka Mwakina
Respondent
Joel Titus Musya T/A Makuri Auctioneers
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Reference Regarding Storage Charges and Execution Costs
Legal Issues
- 1 Whether the applicant is liable to pay storage charges incurred due to execution of court orders.
- 2 Whether the execution proceedings were lawful under Section 94 of the Civil Procedure Act.
- 3 Who bears responsibility for costs arising from an unlawful execution process.
Ratio Decidendi
The court found that the execution proceedings undertaken by the respondent and interested party were not justified under Section 94 of the Civil Procedure Act. As a result, any costs or storage charges arising from the execution, including those claimed by Blackbird Storage and Auction Yard Limited, cannot be imposed on the applicant. The responsibility for such costs lies between the respondent and the interested party, and not the applicant. The applicant is therefore absolved from any liability to pay storage or execution-related charges. The court further held that any claims by third parties for storage or handling fees must be settled between the instructing party, the respondent,...
Court Disposition
Application allowed; applicant absolved from liability for storage and execution costs.
Orders
- The applicant is not liable to pay any storage charges or costs arising from the execution of the court orders.
- Any claims for storage or handling fees by third parties must be settled between the respondent, interested party, and the third party, not the applicant.
Full Case Text
Judgment text and source record
44 paragraphs
Radar Limited v Ngocho & 8 others; Musya t/a Makuri Auctioneers (Interested Party) (Miscellaneous Application E076, E077, E078, E079, E080, E081, E082, E083 & E084 of 2024 (Consolidated)) [2025] KEELRC 754 (KLR) (6 March 2025) (Ruling)
Neutral citation: [2025] KEELRC 754 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Mombasa
Miscellaneous Application E076, E077, E078, E079, E080, E081, E082, E083 & E084 of 2024 (Consolidated)
M Mbarũ, J
March 6, 2025
Between
Radar Limited
Applicant
and
Phoebe Mnavu Ngocho
1st Respondent
Apollo Roge Mghone
2nd Respondent
Paul Matenge Mwadime
3rd Respondent
Philip Ngayaya Mwakwenda
4th Respondent
George Malekwa Okoth
5th Respondent
Josiah Mriangulo Mwambingu
6th Respondent
Granton Mwarinda Mwamburi
7th Respondent
Karen Naliaka Wasike
8th Respondent
Winfred Baraka Mwakina
9th Respondent
and
Joel Titus Musya T/A Makuri Auctioneers
Interested Party
Ruling
1. The applicants contest that they were forced to pay storage charges for the attached motor vehicles following the respondent and interested party's unlawful execution. On 19 December 2024, the court issued orders directing the respondent and interested party to release the vehicles unconditionally, but there was no immediate release until 23 January 2025.
2. Through the Affidavit of Brayan Mwangi, a director of Blackbird Storage and Auction Yard Limited (Blackbird), he avers that on 13 August 2024, he received instructions from the interested party to book motor vehicle registration No. KBV 250R, an Isuzu Dmax, following the court warrant in ELRC No.E010 of 2023 Voi.
3. Mwangi avers that Blackbird is a third party in this matter and has been storing the motor vehicle following the law. On 24 January 2025, he received a Court Order to release the motor vehicle, and upon consultations with the instructing client, he did release the vehicle. However, there were storage charges of Ksh. 96,000 for Ksh.500 per day and Ksh.1,000 for handling fees and VAT, which are due and payable.
4. The respondent's advocate submitted that the court must address when the Court Orders seeking the release of the subject motor vehicle were served. The applicant did not serve the Orders until 24 January 2025, and upon receipt of the orders, the motor vehicle was released and, hence, should pay the storage charges.The applicant did not attend or file any written submissions.
5. The applicant filed a reference dated 5 September 2024 seeking the interested party's joinder in these proceedings. The applicants were also seeking the unconditional release of motor vehicle registrations KBV 250R, KCQ 743A, and KFC 918K.
6. In a ruling delivered on 19 December 2024 the court allowed the application and held that;… the applicant(s) cannot pay the fees claimed by the interested party or the storage charges. These must be resolved between the respondent and the interested party.
7. The gist of these orders was that the respondent could not justify the execution proceedings outside the provisions of Section 94 of the Civil Procedure Act. Hence, whatever costs accrued due to an illegal and invalid execution process can only be paid for by the respondent(s) and not the applicant.
8. The question of when the court orders of 19 December 2024 were served is put into perspective. The same is not due as between the applicant and the interested party or third party, Blackbird, but between the respondent and the interested party and Blackbird.
9. The applicant is, therefore, removed from paying any costs arising from the execution or storage charges.
10. The costs Blackbird claims as a third party and not the interested party cannot be sanctioned in these proceedings. These must be settled between the instructing party, the respondent and the interested party.Orders accordingly.
DELIVERED IN OPEN COURT AT MOMBASA THIS 6TH DAY OF MARCH 2025. M. MBARŨJUDGEIn the presence of:Court Assistant: Japhet……………………………………………… and ………………….………………………