[1987] KEHC 38 (KLR)
The court found that the sale of the motor vehicle was conducted in accordance with the Civil Procedure Rules. The plaintiff had taken steps to ensure compliance by requesting a new warrant and publicly advertising the sale. There was no evidence of fraud, illegality, or unjust conduct. The court therefore declined...
Source-derived case information.
- Citation
- [1987] KEHC 38 (KLR)
- Parties
- Plaintiff: Waitherero; Defendant: Kimunye Investments Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1333 ‘B’ of 1982
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Sale of Motor Vehicle
- Outcome
- application dismissed with costs
- Legal Topics
- Warrant of Attachment, Judicial Sale, Setting Aside Sale, Fraud Allegations, Auctioneer Authority
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Waitherero
Plaintiff
Kimunye Investments Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Sale of Motor Vehicle
Legal Issues
- 1 Whether the sale of motor-vehicle Reg No KTJ 996 was illegal, fraudulent, or unjust and should be set aside.
- 2 Whether the warrant of attachment had expired and if the auctioneers had authority to sell the vehicle.
- 3 Whether the sale was conducted in accordance with the Civil Procedure Rules.
Ratio Decidendi
The court found that the sale of the motor vehicle was conducted in accordance with the Civil Procedure Rules. The plaintiff had taken steps to ensure compliance by requesting a new warrant and publicly advertising the sale. There was no evidence of fraud, illegality, or unjust conduct. The court therefore declined to exercise its discretion under Section 3A of the Civil Procedure Act to set aside the sale, holding that the defendant's application lacked merit.
Court Disposition
application dismissed with costs
Orders
- The application to set aside the sale of motor-vehicle Reg No KTJ 996 is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
CIVIL CASE NO 1333 ‘B’ OF 1982
WAITHERERO……………………….………PLAINTIFF
V
KIMUNYE INVESTMENTS…......…………..DEFENDANT
RULING
The defendant herein Kimunye Investments Ltd, moved the court under Section 3A of the Civil Procedure Act (Cap 21) asking for orders that:-
“The sale of motor-vehicle Reg No KTJ 996, in August 1986 or thereabouts be set aside for being illegal and or fraudulent and unjust.”
The application was supported by the affidavit of Mr. Mungai Kamotho the defendant’s advocate. Mr Kamotho’s complaint was that the warrant of attachment issued for the sale of this motor-vehicle had expired and it was not re-issued so that the auctioneers had no authority to sell the vehicle as they did. That this was illegal, fraudulent and unjust. Mr Macharia Njore, the advocate for the plaintiff filed a lengthy replying affidavit, explaining the circumstances that led to the vehicle being sold. These are contained in his affidavit at paragraphs 4,5,6,7,8,9, and 10. He contended in court during submissions that after the order for stay was dismissed on 26th June, 1986, and the attachment order was still in force, he instructed another firm of auctioneers, Excellent Auctioneers to advertise the vehicle for sale. That this was after he had written to the Registrar to issue a new warrant. This was in compliance with Order XXI Rule 63. Thereafter, Excellent Auctioneers advertised their proposed sale in the Daily Papers to the Public. A Notice to this effect appeared in the Daily Nation, which was an annexture.
From this Mr Macharia submitted that his client’s obligation to defendant was complete, ie discharged as he had given public notice of the indented sale.
Mr Macharia also drew court’s attention to Rule 69 of Order XXI, should it be found tht there was any irregularity in this sale which he denied, anyway. I considered the application, plus the submissions of both learned counsel.
I came to the conclusion that the sale of the vehicle in question was conducted in accordance with the Rules and I therefore do not find any fraud or unjust dealings in the matter. In the circumstances therefore I decline to exercise my discretion under Section 3A Civil procedure Act (Cap 21) to set aside sale as I was requested. The result is that I dismiss application with costs.
March 3, 1987
ALUOCH J