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MagistratePartially AllowedNotice of Motion dated 13th November 2025 (Bungoma)· [2026] KEMC 598 (KLR)

Omondi t/a Dahan Ventures v Opi & another (Miscellaneous Application E363 of 2025) [2026] KEMC 598 (KLR)

Magistrates' Court (Senior Resident Magistrate) at Bungoma
12 February 2026
2,420 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan garage that waited five years to sell an abandoned car was only paid six months of storage fees, proving custodians must act quickly.

What this practically means

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Executive summary

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The Applicant, a garage custodian trading as Dahan/Dahari Ventures, applied under the Disposal of Uncollected Goods Act seeking a declaration that a motor vehicle KCZ 823 B Toyota Axio stored since 23rd March 2020 was abandoned, recovery of storage charges of Kshs. 1,026,000/= at Kshs. 500/= per day, and an order for sale by public auction. The 2nd Respondent, the vehicle's registered owner since 07th July 2020, denied depositing the vehicle, having sold it to Eliab Sato, and did not oppose the sale provided the outstanding purchase price balance of Kshs. 25,000/= was recovered from the proceeds. The court found that the job card did not identify the depositor and that the 2nd Respondent could not have deposited the vehicle before becoming registered owner, so the depositor was a non-party. This would have doomed the application, but the registered owner's consent to the sale saved it. On quantum, the court applied Power Solutions Limited v CMA CGM Kenya Limited, holding that a custodian must mitigate loss and cannot accumulate storage charges indefinitely; the custodian's five-year indolence reduced the award to six months' charges of Kshs. 90,000/=. On title, the court held that under section 8(2) a sale confers no good title against an owner where the depositor was not the owner, so the custodian needed the 2nd Respondent's consent, conditional on payment of the Kshs. 25,000/=. The court declared the vehicle uncollected goods, permitted its public auction, directed proceeds to defray storage charges, the 2nd Respondent's priority claim and sale costs, with any balance released to the 2nd Respondent for onward transmission to Eliab Sato, and ordered each party to bear their own costs.

Key legal issues

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01

Entitlement to storage charges for uncollected goods

Holding

The custodian is entitled to storage fees but only for a reasonable period of six months, i.e. Kshs. 90,000/=, because of failure to mitigate

Reasoning

The court found the goods were deposited by a person who is not a party to the application, since the 2nd Respondent only became registered owner on 07th July 2020, after the deposit date. Although this would have led to dismissal, the current registered owner did not oppose the sale. On quantum, the court adopted the mitigation principle in Power Solutions Limited, holding a diligent custodian should move court promptly, and awarded Kshs. 500 x 30 x 6 = Kshs. 90,000/=.

p. 7
02

Good title on sale under section 8 of the Act where the depositor was not the owner

Holding

The custodian can only give good title to a purchaser under section 8 after obtaining the 2nd Respondent's consent, and must pay the 2nd Respondent Kshs. 25,000/= from the proceeds

Reasoning

Section 8(2) provides that a sale gives good title as against the depositor, but not as against the owner if the depositor did not own the goods. Since the unknown depositor no longer owns the goods, the custodian cannot pass good title without the consent of the current registered owner, who conditioned consent on recovery of the Kshs. 25,000/= purchase price balance owed by Eliab Sato.

p. 8

Legal principles established

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  • A custodian of uncollected goods has a duty to mitigate loss and cannot claim storage charges ad infinitum
  • Six months is a reasonable period for a custodian to move the court for disposal of uncollected goods
  • Under section 8(2) of the Disposal of Uncollected Goods Act, a sale does not give good title against the owner where the depositor did not own the goods

Court orders

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  1. 1.The motor vehicle registration number KCZ 823 B Toyota Axio left/stored in the Dahan Ventures' yard/garage on 23rd March 2020 is declared as uncollected goods
  2. 2.The Applicant is at liberty to sell the uncollected goods comprised in the Notice of Intention to Sell dated 25th October 2024 by way of public auction through a licensed auctioneer at the best reasonable price in the circumstances
  3. 3.The proceeds of the sale to be deposited with Benta Omondi t/a Dahari Ventures to defray the storage charges of Kshs. 90,000/=, the Kshs. 25,000/= due to the 2nd Respondent, as well as the costs of the sale
  4. 4.The sum of Kshs. 25,000/= due to the 2nd Respondent be recovered from the proceeds of the sale of the goods in priority to any other claims
  5. 5.Upon defraying the sums in (c) above, the Applicant shall release the balance of the proceeds of sale, if any, to the 2nd Respondent for onward transmission to Eliab Sato
  6. 6.Each party to bear their costs of this Application

Authorities

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Legislation

  • Civil Procedure ActOrder (sic) 3 & 3A
  • Disposal of Uncollected Goods ActOrders (sic) 7 & 8; sections 8 and 8(2)

Cases cited (1)

  • Power Solutions Limited v CMA CGM Kenya Limited & 2 others
    [2020] eKLR
Jurisdiction invoked
Order (sic) 3 & 3A of the Civil Procedure Act and sections 7 & 8 of the Disposal of Uncollected Goods Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Omondi t/a Dahan Ventures v Opi & another (Miscellaneous Application E363 of 2025) [2026] KEMC 598 (KLR)", Case Analysis (2026). Notice of Motion dated 13th November 2025 (Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/598/eng@2026-02-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.