The Applicant has moved the court by the notice of motion dated 6th April 2023. It seeks a raft of orders following the attachment of its motor vehicle registration number KBM 074H by the Respondent. In order to forestall attachment, the Applicant paid Kshs. 160,000.00 on account of the auctioneers costs. The application is supported by the affidavit of the Applicant’s officer, Lawrence Madialo, sworn on 6th May 2023. It is opposed by the Respondent through Grounds of Opposition dated 14th April 2023. I heard brief submissions by the advocates in support of their respective positions.
It is not disputed the motor vehicle has now been released. Although, the Respondent argues that application has been overtaken by events, the court has to determine the legality of the attachment. When the Applicant’s application for payment by instalments came up ex-parte on 14th February 2023, I issued an order of stay of execution of the decree pending the hearing and determination of the application or further orders of the court. Until the issue of instalments was settled and the application determined by the ruling dated 11th April 2023, the order has not been discharged or otherwise varied. The stay order remained in force. I therefore hold that the attachment was irregular. In the circumstances, I allow the application dated 6th April 2023 and order that the Applicant shall be given credit of Kshs. 160,000.00 paid to the Fisra Auctioneers from the judgment debt due to the Respondent. The Applicant shall also pay costs of the application assessed at Kshs. 10,000.00 only.
DATED and DELIVERED at NAIROBI this 2nd day of MAY 2023
D. S. MAJANJA
JUDGE