Maina & another v CM alias CMM (A Minor Suing Through the Next of Friend NWM) (Civil Appeal E058 of 2025) [2026] KEHC 2317 (KLR) (26 February 2026) (Ruling) Neutral citation: [2026] KEHC 2317 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MURANG'A CIVIL APPEAL E058 OF 2025 TW OUYA, J FEBRUARY 26, 2026 BETWEEN JEDIEL GITHINJI MAINA ............................................................... 1ST APPLICANT ANTHONY GATHOGO KURIA .................................................... 2ND APPLICANT AND CM ALIAS CMM (A MINOR SUING THROUGH THE NEXT OF FRIEND NWM) .................................................................................................... RESPONDENT RULING 1. By an application dated 5th December 2025, the Applicants moved this honourable court seeking an order that motor vehicle registration number KCC 660M held by Beta Recovery Auctioneers be released to them. 2. The Application was based on grounds on its face and grounds on the affidavit of Jadiel Githinji Maina on grounds that motor vehicle KCC 660M had been attached by BETA Recovery Auctioneers on 26th May 2025 and had been accruing a parking fee of Kshs. 300 per day thus drifting him into unwarranted and unnecessary debts. 3. It was also averred that despite the numerous pleas to Beta Recovery Auctioneers to release the vehicle, they totally refused, ignored and or declined to release the motor vehicle, despite paying Kshs. 40,000. As a result, the motor vehicle is wasting and wearing out vital parts to his financial and economic detriment. 4. The Respondent did not file any response to the Application. 5. The court directed the parties to file written submissions. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2317/eng@2026-02-26 1
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6. The Applicant submitted that the continued detention of motor vehicle registration number KCC 660M is not beneficial to any party in the suit. In any case, it is only the auctioneers who continue to benefit, as they receive money from the Applicant, while the Respondent receives nothing. 7. I have considered the Application before me. I have also taken into account the law, the facts relied on and the submissions filed herein. The main issue that commends itself for determination is whether the Application herein is merited. 8. It is therefore important to consider the relevance of the provisions of law cited or relied on by the Applicant. 9. The Applicant relied on Articles 23, 40, 50 (1) and 259 of the Constitution, Section 3A and 63 of the Civil Procedure Act and Order 22 Rule 37, 48 (1), 50 and Order 51 Rule 1 of the Civil Procedure Rules whose relevance I will analyze. 10. Section 3A provides for the inherent power of the Court not being limited by way of the provisions in the Act in making orders as it may deem fit for the ends of justice or preventing the abuse of its process. 11. While the Applicant relied on Section 63 of the Civil Procedure Act, I note that the same deals with supplemental proceedings. The Applicant was therefore required to specifically delineate the provision of Section 63 that he sought to rely on. 12. Order 22 Rule 37 relates to the attachment of movable property other than agricultural produce in possession of the judgment debtor. It provides that: Where the property to be attached is movable property, other than agricultural produce, in the possession of the judgment-debtor, the attachment shall be made by actual seizure, and the attaching officer shall keep the property in his own custody, or in the custody of one of his subordinates, and shall be responsible for the due custody thereof: Provided that, when the property seized is subject to speedy and natural decay, or when the expense of keeping it in custody is likely to exceed its value, the attaching officer may sell it at once; and further that when the property seized is livestock the court may make such arrangement for the custody and maintenance thereof as it may deem sufficient. 13. The Applicant’s main contention is that motor vehicle registration number KCC 660M held by Beta Recovery Auctioneers be released to them. The said motor vehicle was attached in satisfaction of a decree issued in Murang’a Chief Magistrate’s Civil case E075 of 2023. It is therefore evident that the subject motor vehicle is in the lawful custody of Beta Recovery Auctioneers and not a stranger as alleged by the Applicant. 14. Whereas the applicants have alleged that keeping the subject motor vehicle at the auctioneer’s yard has become an expensive endeavour, no evidence has been availed before this honourable court to demonstrate that the expenses of keeping the said vehicle in custody had exceeded or is likely to exceed its value. Without such evidence, this honourable court is not seized of the necessary material to make a determination on the value of the subject motor vehicle versus the amount accrued as fees for every day that it spends in custody. 15. I have also noted that the party against whom the application has been made has not been enjoined as a party to these proceedings for purposes of responding to the allegations on the cost of keeping the subject motor vehicle in custody. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2317/eng@2026-02-26 2
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16. The Court is not to assist a party conduct his case by going out for a search of the relevant evidence in support of an application. A party is bound to do his preparation well. This legal system, the Common Law, is an adversarial system wherein the Court sits as an impartial arbiter and not one to assist parties in their cases. 17. The conclusion of the matter is that the Application dated 5th December 2025 is wholly unmeritorious and it is hereby dismissed. No orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 26TH DAY OF FEBRUARY, 2026. HON. T. W. Ouya JUDGE For Respondent ……Gichimu For Applicant………..Gitau Kagai Court Assistant……Brian https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2317/eng@2026-02-26 3
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