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Japheth Mutisia Masila T/A Commercial Enterprises v Kwale International Sugar Co. Ltd; Hamisi Juma Gugu T/A Guggu & Compant Auctioneers (Auctioneer) (Civil Case 245 of 2016) [2022] KEHC 12493 (KLR) (Commercial and Tax) (7 July 2022) (Ruling)
Neutral citation:
[2022] KEHC 12493 (KLR)
Republic of Kenya
Civil Case 245 of 2016
WA Okwany, J
July 7, 2022
Between
Japheth Mutisia Masila T/A Commercial Enterprises
Plaintiff
and
Kwale International Sugar Co. Ltd
Defendant
and
Hamisi Juma Gugu T/A Guggu & Compant Auctioneers
Auctioneer
Ruling
1.On November 25, 2021, this court delivered a ruling in respect to the application dated August 26, 2020 wherein the defendant sought orders for mandatory injunction to compel the auctioneer to return motor vehicle registration numbers KBZ 303B and KBS 614Z to it. The court found that while the auctioneer acted without the instructions of the plaintiff’s advocate at the time he sold the suit motor vehicles, the said advocates accepted the sale proceeds from the said auctioneer without complaint and could not claim that they had withdrawn the instructions.
2.The court also found that the defendant was guilty of laches by purporting to seek a reversal of the auction several months after it was conducted. The court also noted that the defendant had not demonstrated that it was ready able and willing to settle the decretal sum that was the basis for the attachment of the suit motor vehicles in execution of court warrants.
3.It was further, the finding of this court that it will be futile to set aside the sale of the suit motor vehicles if the decretal sum had not been paid. The court however deferred its final orders in the matter and directed the parties to furnish information regarding the settlement of the decretal sum, the current value condition and ownership of the suit motor vehicles.
4.I have perused the auctioneer’s affidavit dated December 9, 2021 and I note that he confirms that he sold the suit motor vehicles to the highest bidder, one Issa Said Salim on September 14, 2019 which was way before the defendant’s application seeking the return of the vehicles was filed on August 26, 2020. He further confirms that he forwarded the proceeds of the sale to the plaintiff’s advocates and that the vehicles are currently in the possession of the buyer Mr. Salim.
5.The defendant’s Legal Officer Mr Amos Suge filed a further affidavit pursuant to this court’s orders of November 25, 2021 in which it alleges that the parties herein recorded a consent on February 28, 2020 wherein it was agreed that the decretal sum was to be liquidated by monthly instalments of Kshs 500,000 until payment in full. He further averred that the payments were ongoing and would be cleared in a few months. He attached copies of email correspondence and cheques for the sum of Kshs 1,500,000 in the name of Phillip Muoka & Co Advocates.
6.I have carefully considered the parties’ respective further affidavits pursuant to the court orders of November 25, 2021. I note that even though the defendant claims that the parties recorded a consent and that it is in the process of settling the decretal sum, there is no proof that the full decretal sum has been settled in order to justify the defendant’s claim for the return of the suit motor vehicles. I say so because under the terms of the said consent of February 28, 2020 the defendant was to pay monthly instalment of Kshs 500,000 till payment in full. I find that if indeed the defendant complied with the said consent, then the full decretal sum would have been settled as at the time the defendant filed the further affidavit.
7.I find that the defendant has not established that it is entitled to the equitable remedy of mandatory injunction sought.
8.My final orders in respect to the application dated August 26, 2020 is to dismiss the said application with no orders as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF JULY 2022.WA OKWANYJUDGEIn the presence of: -Mr Njuru for Defendant.Mr Mohamed for the Auctioneer.Court Assistant- Sylvia
