[1998] KEHC 284 (KLR)
The court held that the attaching party, in this case the plaintiff (through its advocates), bears the responsibility for ascertaining the ownership of property before attachment. Since the objector’s vehicle was wrongfully attached and the objector is not a party to the proceedings, the objector is entitled to the...
Source-derived case information.
- Citation
- [1998] KEHC 284 (KLR)
- Parties
- Plaintiff: Wairimu Githua; Defendant: Peter Mugo Nganga; Defendant: John Muturi Nganga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 5258 of 1989
- Procedural Posture
- Civil Case / Ruling on Application Regarding Storage Charges After Attachment
- Outcome
- Application allowed; vehicle to be released unconditionally to objector.
- Legal Topics
- Attachment of Property, Auctioneer Charges, Wrongful Attachment, Release of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wairimu Githua
Plaintiff
Peter Mugo Nganga
Defendant
John Muturi Nganga
Defendant
Procedural Posture
Civil Case / Ruling on Application Regarding Storage Charges After Attachment
Legal Issues
- 1 Who should bear the storage charges incurred as a result of the attachment of the motor vehicle registration no. KRZ 999.
- 2 Whether the objector, not being a party to the proceedings, should have the vehicle released unconditionally.
Ratio Decidendi
The court held that the attaching party, in this case the plaintiff (through its advocates), bears the responsibility for ascertaining the ownership of property before attachment. Since the objector’s vehicle was wrongfully attached and the objector is not a party to the proceedings, the objector is entitled to the unconditional release of its property. The auctioneer’s costs, incurred as a result of the wrongful attachment, are to be recovered from the party who instructed the auctioneer (the plaintiff’s advocates), and not from the objector. The court further clarified that the release of the vehicle shall not be conditional upon payment of the auctioneer’s charges by the objector. The...
Court Disposition
Application allowed; vehicle to be released unconditionally to objector.
Orders
- The motor vehicle registration number KRZ 999 shall be released to the objector forthwith and unconditionally.
- The auctioneer is to recover his charges from the advocates for the plaintiff, not from the objector.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 5258 OF 1989
WAIRIMU GITHUA.......................................................PLAINTIFF versus PETER MUGO NGANGA.........................................1ST DEFENDANT JOHN MUTURI NGANGA......................................2ND DEFENDANT
R U L I N G
The issue herein I believe is one. Who should bear the storage charges incurred as a result of an attachment of the motor vehicle registration no. KRZ 999 belonging to the objector King’ora Estate Limited
The objector is not a party to these proceedings. I am also told from the bar that Mr. Peter Mugo Nganga is also no longer a party to these proceedings.
When the objection to the attachment was raised the learned counsel for the plaintiff authorised the release of the motor vehicle. this was not done as the auctioneer’s charges had not been paid. But that is not the concern of the objector whose legal capacity is different from any other party.
Ordinarily, whoever moves to make an attachment was the duty to ascertain the identity or ownership of the property to b attached. If it then happens that wrong property has been attached it is the attaching party who should bear the costs occasioned thereby. The owner of the property wrongfully attached is entitled to possession of the property unconditionally.
And so I now order that the said motor vehicle registration number KRZ 999 shall be released to the objector forthwith and unconditionally.
The auctioneer must have incurred costs. Indeed that is why this matter has reached this point. He was instructed by the advocates for the plaintiff. He has to recover those costs from the said advocates but that shall not be a condition for the release of the said motor vehicle as the objector is an innocent pat.
The advocates for the plaintiff of course are at liberty to pass over the said costs to the judgment debtor. Those are the orders of the court.
Each party shall bear own costs of this application.
Dated at Nairobi this 13th day of November, 1998.
MBOGHOLI MSAGHA
JUDGE