. The Applicant herein, via an Application date 4 th September 2024, sought to stay, set aside, review/vary the ruling in MCCR No. E 584/2023 that was delivered on 30th September, 2024 before Hon. David O. Odhiambo releasing Motor Vehicle Registration No. KCV 197J to the 3rd Respondent on the grounds that the 3rd Respondent is not a party to Criminal Case No. MCCR E584 of 2023 and the said motor vehicle is allegedly the main piece of evidence in the case and should therefore be preserved.
The 1st and 2nd Respondents are yet to put in their responses.
The 3rd Respondent opposed the Application and asserts that these claims are unfounded, as the orders in question were properly issued following due process and the Applicant has no legal or factual basis to challenge them.
The 3rd Respondent advanced a credit facility of One Million, Five Hundred Thousand Kenya Shillings (Kshs. 1,500,000/=) to the 2 nd Respondent, Deborah Ngoya Ombwara, secured by the said motor vehicle. The motor vehicle was jointly registered in the names of the 2nd and 3 rd Respondents. Upon the 2 nd Respondent’s default in repaying the loan, the 3 rd Respondent lawfully initiated recovery proceedings in Milimani Commercial Suit No. E572 of 2022, obtained orders for the release of the motor vehicle and restraining any change in ownership of Motor Vehicle KCV 197J.
Despite these orders, the Applicant sought release of the vehicle in Mombasa MCCR E584 of 2023 to himself leading to conflicting orders.
Upon discovery, the 3rd Respondent moved the same court to set aside the Applicant's orders and on 30th September, 2024, the court reaffirmed custody of the vehicle with the 3 rd Respondent.
ISSUES FOR DETERMINATION
(a) Whether the orders should be stayed varied or set aside
(b) Whether the Ruling was properly issued
(c) What reliefs can this court offer?
a. Whether the orders should be stayed varied or set aside
The orders in the ruling issued on 30th September, 2024 releasing the Motor Vehicle to the 3rd Respondent in MCCR No. 584 of 2023 were very clear with set out conditions which included not to transfer, sell, and lease or in any way part with possession of the Vehicle pending Hearing and determination of the Criminal suit.
The 3rd respondent was directed to bring the motor vehicle to court as and when required. The 3rd Respondent submitted that they are strictly adhering to these court orders and thereby preserving its existence and shall produce the same to court when required to do so
. Secondly, while the motor vehicle is a crucial piece of evidence in the criminal proceedings, the 3rd Respondent’s lawful rights over the vehicle cannot be overlooked. The vehicle was pledged as security for a loan facility and has been subject to legal proceedings in which the 3 rd Respondent has demonstrated its rightful interest. The 3rd Respondent is a registered co owner of the Motor Vehicle, with rights that are firmly protected under Article 40 of the Constitution of Kenya which guarantees the right to property. Additionally, the 3rd Respondent's interests are safeguarded under the Movable Property Security Rights Act (MPSRA) which provides for the registration and enforcement of security interests under Section 67.
Given that the 3rd Respondent has adhered to court orders and is prepared to present the vehicle when required, there is no legitimate basis for denying their right to possess the vehicle.
. Additionally, the Applicant is seeking to set aside the orders that were already made by two different courts regarding the release of the vehicle to the 3 rd Respondent. The Applicant has not applied to be joined in the earlier proceedings in Milimani CMCC E572 of 2022 despite knowing about its existence. The Applicant has been served with necessary documentations, but instead of raising concerns at the appropriate time, he now seeks to disturb the judicial process by making frivolous claims without legal foundation in order to unjustly delay the Court proceedings and interfere with the 3rd Respondents rightful possession of the Vehicle
The Court of Appeal in Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2 others Civil Appeal No. 25 of 2002 (2009) eKLR 229, stated as follows: - “ The term abuse of Court process has the same meaning as abuse of judicial process. The employment of judicial process is regarded as an abuse when a party uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. It is a term generally applied to a proceeding, which is wanting in bona-fides and frivolous, vexatious or oppressive.”
The Court also issued conditions and among them was that all matters concerning the release of the said vehicle shall be conversed in the case at Milimani CMCC E572 of 2022. The Applicant contended that the 3rd Respondent should not have received such orders as he is not a party to the criminal suit. Courts have held that a party is necessary to a suit where it is shown that the legal reliefs sought would directly affect the person sought to be joined, to avoid a multiplicity of suits or where it is shown that the Defendant cannot effectually set a defence unless that person is joined in it. As st out in the Ugandan case of Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55 with approval by the Court of Appeal in Kenya Civicon Limited v Kivuwatt Limited & 2 others [2015] eKLR.
The court agrees that the 3rd Respondent is a necessary party in the proceedings as they as they are is the lawful custodian of the motor vehicle, having advanced a credit facility to the 2 nd Respondent secured by the vehicle. The 3rd Respondent has a proprietary interest in the vehicle, which is the subject of both the civil and criminal proceedings.
The Applicant should have sought to be enjoined in the original civil case in order to discuss on the release of the said Motor vehicle to him. The 3rd Respondent, as the lawful co-owner of the vehicle in question, had a legitimate stake in the matter and a direct interest in the outcome of the criminal proceedings as the Vehicle which he has proprietary rights over formed the subject matter of the dispute.
c. What reliefs can this court offer?
The 3rd Respondent has shown that they have a legitimate claim to the vehicle. The only ground raised by the Applicant is that the vehicle is required as an exhibit. I note as a matter of great concern that the Odpp were served and are included in this application as the second respondent. They are the ones who have the mandate to prosecute and they are the ones who should be raising the issues of exhibits. They have not responded to the Application.
I note that the 3rd respondent were ordered and they have pledged to preserve the subject motor vehicle. That should allay the Applicant’s fear. Further there is no indication as to if and when the 2nd respondent will be arrested to kick start the proceedings. It would be unfair to hold the vehicle for an indefinite period without any proceedings.
Accordingly I do not find any error or irregularity or IN PROPRIETY in the order to warrant setting it aside.
The application is dismissed.
No orders as to costs
Dated signed and delivered this 20th day of FEBRUARY 2025
LADY JUSTICE WENDY KAGENDO
IN THE PRESENCE OF :
THE 2ND AND 3RD RESPONDENTS
MS BEBOREA COURT ASSISTANT