[2021] KEHC 668 (KLR)
The court found that the motor vehicle KCT 596W was unlawfully attached and sold in violation of a subsisting court order. The plaintiff and the auctioneer were aware of the objection proceedings and the stay order, yet proceeded with the sale. As a result, no proprietary interest could pass to the applicant, Lisbin...
Source-derived case information.
- Citation
- [2021] KEHC 668 (KLR)
- Parties
- Plaintiff: Rosemary Wanjiku Kungu; Defendant: Peter William Kinyanjui; Applicant: Effort Movers Limited; Applicant: Martin Nguku Karanja/T/A Country Muthiga Inn; Applicant: Charles Njogu Wanjema; Applicant: Lisbin Maina Chege
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 79 of 2017
- Procedural Posture
- Civil Case / Ruling on Application for Joinder and Setting Aside Orders
- Outcome
- application dismissed with costs to the plaintiff
- Judges
- JK Sergon
- Legal Topics
- Joinder of Parties, Setting Aside Orders, Auction Sales, Attachment of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rosemary Wanjiku Kungu
Plaintiff
Peter William Kinyanjui
Defendant
Effort Movers Limited
Applicant
Martin Nguku Karanja/T/A Country Muthiga Inn
Applicant
Charles Njogu Wanjema
Applicant
Lisbin Maina Chege
Applicant
Procedural Posture
Civil Case / Ruling on Application for Joinder and Setting Aside Orders
Legal Issues
- 1 Whether Lisbin Maina Chege should be enjoined as an interested party in the proceedings.
- 2 Whether the orders granted on 21 May 2021 should be varied or set aside as they relate to motor vehicle KCT 596W.
- 3 Whether possession and control of motor vehicle KCT 596W should be restored to Lisbin Maina Chege.
Ratio Decidendi
The court found that the motor vehicle KCT 596W was unlawfully attached and sold in violation of a subsisting court order. The plaintiff and the auctioneer were aware of the objection proceedings and the stay order, yet proceeded with the sale. As a result, no proprietary interest could pass to the applicant, Lisbin Maina Chege, under these circumstances. The court held that the applicant's remedy lies in pursuing a separate action against the plaintiff and the auctioneer, not through the current proceedings. Consequently, the application for joinder, variation, and restoration of possession was dismissed.
Court Disposition
application dismissed with costs to the plaintiff
Orders
- The motion dated 24th June, 2021 is dismissed.
- Costs of the application to be borne by the Plaintiff.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NUMBER 79 OF 2017
ROSEMARY WANJIKU KUNGU................................ PLAINTIFF
VERSUS
PETER WILLIAM KINYANJUI..................................DEFENDANT
AND
EFFORT MOVERS LIMITED.....................................1st OBJECTOR
MARTIN NGUKU KARANJA/
T/A COUNTRY MUTHIGA INN..............................2ND OBJECTOR
CHARLES NJOGU WANJEMA...... PROPOSED 1ST INTERESTED PARTY/APPLICANT
LISBIN MAINA CHEGE..............................PROPOSED INTEESTED PARTY APPLICANT
RULING
1. Lisbin Maina Chege, the proposed 2nd Interested Party (applicant) took out the motion dated 24th June, 2021 whereof he sought for the following orders: -
i) THAT this Honorable Court be pleased to enjoin Lisbin Maina Chege as an interested party in these proceedings.
ii) THAT this Honorable Court be pleased to vary and/or set aside the orders granted on 21 May 2021 to the extent that the orders relate to motor vehicle registration number KCT 596W.
iii) THAT this Honorable Court be pleased to restore possession and control of motor vehicle registration number KCT 596W to Lisbin Maina Chege.
iv) THAT this Honorable Court be pleased to grant leave to Lisbin Maina Chege to file a response to the objection proceedings
v) THAT the Honourable Court be pleased to issue such further and/or alternative orders that may be appropriate in the interests of justice and the circumstances of this case.
vi) THAT the Applicant be awarded costs of this application,
2. The applicant filed an affidavit he swore in support of the motion. Effort Movers Ltd. - the 1st objector, filed the replying affidavit sworn by Robert Karanja Ngunu to oppose the motion.
3. Parties were invited to file written submissions.
4. I have also considered the written submissions plus the authorities cited.
5. The applicant averred that he purchased Motor Vehicle Registration No. KCT 596W in a Public auction conducted by Icon Auctioneers and that the motor vehicle was transferred to him on 23rd June, 2020. He further averred that he was not aware of the objection proceedings and the existence of a temporary order for stay of execution and sale issued on 21st May, 2021. The applicant further averred that the aforesaid motor vehicle was seized and represented by Moran Auctioneers on 23rd June 2021 pursuant to the court order issued on 21st May, 2021.
6. The Applicant also argued that the 1st objector’s remedy in the objection proceedings is overtaken by events.
7. For the above reasons, the applicant sought to be enjoined to this suit so that he can pursue his interests over Motor Vehicle Registration No. KCT 596W.
8. The 1st Objector urged this court to dismiss the applicant’s motion arguing that the auctioneer proceeded to proclaim and attach the aforesaid motor vehicle yet the same did not belong to the defendant the judgment debtor.
9. The 1st Objector averred that it filed and served the objection proceedings upon the plaintiff and the auctioneer on 4th February, 2021 but still the auctioneer proceeded to seize his motor vehicle on 2nd March, 2021.
10. The 1st Objector further stated that it obtained a temporary order for stay of sale of the aforesaid motor vehicle on 11th March, 2021 and, therefore the sale conducted on 15th March, 2021 was illegal, unlawful and in violation of the stay orders issued on 11th March, 2021.
11. It is clear to this court that motor vehicle registration No. KCT 596W was unlawfully attached and sold in blatant violation of this court’s order. The Plaintiff and the Auctioneer were made aware of the existence of the objection proceedings and the court order.
12. No proprietary interest over the aforesaid motor vehicle could be passed to the proposed 2nd interested party/applicant in the circumstances.
13. The applicant’s remedy lie against the plaintiff and the auctioneer through a separate action and not through this suit.
14. In the end, I find no merit in the applicant’s motion dated 24th June, 2021. The same is dismissed with costs being borne by the Plaintiff.
DELIVERED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 26TH DAY OF NOVEMBER, 2021.
……………………………….
J. K. SERGON
JUDGE
In presence of
…………………………. for the plaintiff
…………………………. for the defendant
…………………………. for the 1st Objector
………………………… for the 2nd Objector
………………………… for the proposed interested party