[2012] KEHC 5070 (KLR)
The court found that the decree had already been fully satisfied at the time the motor vehicle KAV 448V was attached, and that there was an overpayment of KES 619,476.53 as confirmed by the Deputy Registrar. The court held that the applicant was entitled to restitution of the overpaid amount and to the immediate...
Source-derived case information.
- Citation
- [2012] KEHC 5070 (KLR)
- Parties
- Applicant: Welimainsurance Brokers; Respondent: Muhoroni Sugar Co. Ltd; Respondent: Kenya Sugar Board suing through Joint Receivers and Managers of Muhoroni Sugar Co. Ltd (in Receivership)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 655 of 1998
- Procedural Posture
- Civil Case / Ruling on Post Judgment Application
- Outcome
- application granted
- Legal Topics
- Execution of Judgment, Restitution, Overpayment Recovery
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Welimainsurance Brokers
Applicant
Muhoroni Sugar Co. Ltd
Respondent
Kenya Sugar Board suing through Joint Receivers and Managers of Muhoroni Sugar Co. Ltd (in Receivership)
Respondent
Procedural Posture
Civil Case / Ruling on Post Judgment Application
Legal Issues
- 1 Whether the attached motor vehicle should be released to the applicant as the decree was already satisfied.
- 2 Whether the applicant is entitled to restitution for overpayment of KES 619,476.53.
- 3 Whether execution should issue in default of payment of the overpaid sum.
Ratio Decidendi
The court found that the decree had already been fully satisfied at the time the motor vehicle KAV 448V was attached, and that there was an overpayment of KES 619,476.53 as confirmed by the Deputy Registrar. The court held that the applicant was entitled to restitution of the overpaid amount and to the immediate release of the attached vehicle. Judgment was entered for the applicant for the overpaid sum with interest from 25/2/2011 at court rates, and execution was to issue in default of payment. The court further ordered that costs of the application be paid by the respondents jointly and severally.
Court Disposition
application granted
Orders
- The plaintiff is ordered to forthwith release motor vehicle KAV 448V to the applicant within 7 days.
- Judgment is entered against the plaintiff for the defendant in the sum of KES 619,476.53 with interest from 25/2/2011 at court rates until payment in full.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO. 655 OF 1988
WELIMAINSURANCE BROKERS.......................................... DECREE HOLDER/APPLICANT
VERSUS
MUHORONI SUGAR CO. LTD...............................JUDGMENT DEBTOR/1ST RESPONDENT
KENYA SUGAR BOARD SUING THROUGH JOINT RECEIVERS AND MANAGERS OF
MUHORONI SUGAR CO. LTD(IN RECEIVERSHIP).........OBJECTORS/2ND RESPONDENT
RULING
The application dated 29/11/2011 seeks prayers (2) that the court to issue an order to plaintiff and direct O. Services Auctioneers to forthwith release motor vehicle numbered KAV 448 V to the applicant/defendant and (3) that the court do enter judgment for defendant/applicant against the plaintiff for Shs.619, 476. 53 and (4) in default of payment the said sum execution proceedings do issue and finally (5) costs arising from this application and such execution to be paid by the plaintiff.
On the grounds that when the said vehicle was attached by the plaintiff and the said auctioneer the decree was already fully satisfied and there was an overpayment of Shs.619. 476. 53.
The court ordered that in restitution the plaintiff do pay the said money to the applicant.
The application is supported by affidavit of Martin Odero Owiti sworn on 29/11/2011. It is sworn that an extracted order of the court with penal notice was served upon the plaintiff as shown on in exhibit “moo5”.
It is sworn that todate the vehicle has not been released to defendant. Neither has money been paid. The affidavit is together with exhibits which show that the Deputy Registrar Mrs. Gichohi found overpayment Shs.619,476/53.
Upon hearing Mr. Bundotic in absence of the two counsel Kong’o Omogeni and Kibunja & Associates I am satisfied that the orders made by this court are valid and within powers of court to order restitution I grant the orders sought and order the plaintiff to forthwith release the said motor vehicle namely number KAV 448V within next 7 days from today.
Judgment is hereby entered against the plaintiff for defendant in the sum of Shs.619,476/53 to carry interest from date 25/2/2011 at court rates until payment in full.
In default of payment execution to issue.
Further order: The costs of this application to be paid by respondents jointly and severally.
Orders accordingly.
Dated and Delivered at Nairobi this 19th day of January, 2012.
J. KHAMINWA
JUDGE
19/1/2012
Coram: Khaminwa, J
Court clerk – Mary
Mr. Odhiambo holding brief for Bundotich for defendant applicant
Ruling read in his presence.
J. KHAMINWA
JUDGE