Moiz Motors Limited v Wycliffe Lubanga Ajarega

to the application dated 10th June 2025, which was withdrawn. He stated that he complied with all court rules and procedures and urged the court to dismiss the application with costs. 4. In the said replying affidavit, the respondent denied entering a car hire purchase with the applicant and stated that he took his motor vehicle, Toyota Vitz registration no. KDB XXXL to be traded in. The vehicle was valued at Kes 700,000, and the applicant accepted the sum to be used as a deposit in the purchase of motor vehicle registration no.KDE XXX Toyota Hiace KDH201-0169XXX. He was to pay the balance in installments of Kes 110,416 per month for 24 months, effective 1st October 2021. 5. He further stated that the applicant did not fulfil its obligation as it failed to provide the number plates of the said motor vehicle for a month, and therefore, the said motor vehicle could not be put to use since it lacked number plates. As a result, he suffered a serious loss of business since he had paid for the requisite licenses and Sacco fees for the particular routes and only started operation on 6th October 2021, one month after possession of the motor vehicle. 6. He averred that sometime in May 2022, he defaulted in payment of the instalment as agreed, but was still within and in compliance with the terms of the agreement. It was agreed that the balance would be paid within 24 months, effective 1st October 2021 until 31st August 2023. In April 2022, the applicant instructed auctioneers to repossess the said motor vehicle without written notice to him demanding rectification of any breach he may have committed under the agreement. The applicant proceeded to sell the said motor vehicle to a third party, causing him damages and serious loss, and without considering the completion date for the full payment. That, as per the agreement, in case of default, the applicant was supposed to invoke clause 8 of the agreement. 7. He further averred that he had made improvements to the motor vehicle worth Kes 237,000 by installing fittings, seats, and other amenities, as it was new and he was using it for public transport. That he used to make Kes 5000 per day, and therefore the repossession was unprocedural and illegal and in blatant violation of the hire purchase agreement. 8. He instituted civil proceedings against the applicant, who did not enter an appearance, and as a result, an interlocutory judgment was entered. He then instructed Ndutumi Auctioneers to execute the decree by attaching and selling the appellant’s property to recover the decretal sum. The applicant filed two applications trying to stop the execution, which were dismissed. Subsequently, the auctioneer proceeded to attach the subject motor vehicle, which was sold at a public auction o 17th June 2025, for Kes 2,300,000. The sale was conducted in strict compliance with the law. 9. The applicant filed a supplementary affidavit sworn on 30th July 2025 by Nicholus Ngoli Inyangala, vide which he stated that the affidavit referred to by the respondent did not show who attended the auction and who were the bidders at the auction to confirm if the rules were followed. The subject motor vehicle was not registered, and it would have been sold at the market value of Kes 6,000,000, and therefore, the allegation that it was sold at Kes 2,950,000 as an under-sale and prejudicial to the applicant, who will lose half the value of the said motor vehicle. 10. He further stated that the respondent has not produced any proclamation against the said motor vehicle. 11. The application was canvassed by way of written submissions. Subsequently, the applicant, through its advocates Osoro Juma & Co. Advocates, filed written submissions dated 30th July 2025. Counsel reiterated the applicant’s position and submitted that the auctioneers never indicated where the auction took place, nor did they notify the judgment debtor of the auction to attend as per the Auctioneer's Rules, and therefore, the auction was a nullity and ought to be revoked. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1156/eng@2026-01-26 2

page 2 of 3

12. I have considered the application, the responses therein, and the submissions. It is now my duty to determine whether the orders sought should issue. 13. On prayer 2, the trial court entered an interlocutory judgment against the applicant herein for Kes 2,037,000 and costs Kes 136,387.50, totaling Kes 2,173,387.50 and interest on all the foregoing at court rates. My understanding is that the said judgment is the one that led to the auction resulting in the dispute before this court today. 14. In his affidavit sworn on 27th June 2025, the respondent attached a copy of Certificate of Sale, warrants of attachment of movable property in execution of a decree for money, warrant of sale of property in execution of a decree for money, a copy of the public auction notice in the Standard newspaper of 9th June 2025. No proclamation or notice to the applicant was attached. 15. My understanding is that the said motor vehicle has already been sold, and the third party is not a party to this matter; thus, the order may not be viable at this stage. The dispute is on whether the right procedure was followed before the sale, which is a question that can only be dealt with during the hearing of the appeal. It is therefore my view that the said order must fail. I am guided by sections 1A, 1B, and 3A of the Civil Procedure Act. 16. The honourable court, in its orders of 10th June 2025, issued by Hon. Justice Jairus Ngaah, stated as follows:“ …meanwhile, stay of execution of the decree is granted pending the hearing of the application interpartes on condition that the decretal sum is deposited as security for the performance of the decree in an interest –earning bank account in the joint names of the applicant and the respondent within 45 days of the date of this order.” 17. The orders were given in respect of the application dated 10th May 2025, which was compromised in terms of the said ruling and or orders. The applicant has not shown how compliance with the said order has been frustrated by the respondent to warrant the issuance of the Prayer No. (c). Further, no reasons were given as to why the applicant has not complied with the said order to date. 18. Under the circumstances, I find and hold the application herein lacks merit. The same is dismissed with costs. 19. It is so ordered. DATED AND SIGNED IN MOMBASA, THIS 26TH DAY OF JANUARY 2026. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. GREGORY MUTAI JUDGE In the presence of: Mr Kiiru for the Respondent; No appearance for the Appellant/Applicant; and Ms Bancy – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1156/eng@2026-01-26 3

page 3 of 3