kemc-2026-00598

d) The (sic) in the default of payment of Kshs. 1,026,000/= by the Respondent the Honourable court be pleased to issue an order for sale of uncollected/unclaimed/abandoned/attached/repossessed property comprised in Notice of Intention to Sell dated 25 th October 2024 and currently in the custody of the (sic) Dahan Ventures (Yard/Garage) by way of public auction through a licensed auctioneer e) The proceeds of sale to be deposited with Benta Omondi t/a Dahari Ventures to defray the storage charges or part of it f) Costs of the application be costs in the cause 2. The Application was premised on the grounds on the face of it, which grounds were reiterated in the Supporting Affidavit sworn by Benta Omondi (‘the custodian’) on 10th November 2025. 3. The gist of the instant Application is that the Respondents stored for repairs the motor vehicle registration number KCZ 823 B Toyota Axio (‘the goods’) at the custodian’s storage facilities from 23 rd March 2020 to date. The Respondents reportedly failed to provide finances for the repair or purchase of the spare parts for the repair of the goods. 4. The custodian further averred that the Respondents have never collected the goods, causing the storage charges to balloon to Kshs. 1,026,000/= as at 10th November 2025, which amount has reportedly surpassed the value of the goods. 5. The custodian also averred that the 1st Respondent was the one in possession of the goods at the time the goods were taken to their storage facilities, and that the 2nd Respondent was the goods’ registered owner. 6. The custodian placed before this court the goods’ job card dated 23 rd March 2020 and a copy of the goods’ logbook, as well as a demand notice dated 05th April 2024 and Notice of Intention to Sell dated 25 th

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October 2024, reportedly served upon the Respondents in support of their case. 7. For the reasons above, the custodian prayed that they be allowed to dispose of the goods to create space in their storage facility. 8. The 2nd Respondent opposed the instant Application through a Replying Affidavit sworn by Muhammad Faizan on 06 th December 2025. 9. The 2nd Respondent denied depositing the goods at the custodian’s garage for repair as averred in the instant Application. They stated that they sold the goods to Eliab Sato through an agreement dated 09th July 2020. They added that Eliab Sato still owed them Kshs. 25,000/= arising from the sale of the goods. 10. The 2nd Respondent further averred that they were not opposed to the instant Application, provided the outstanding balance of Kshs. 25,000/= is recovered from the proceeds of the sale of the goods. 11. They added that if the goods were to be sold for recovery of the storage charges without an order for the recovery of their outstanding balance of Kshs. 25,000/=, they would be unable to collect the said balance from the goods’ purchaser, thereby prejudicing their legal and proprietary rights ANALYSIS & DETERMINATION 12. This court has given due regard to the pleadings on record and the applicable law. The issues that commend to this court for determination are: a) Whether the Applicant is entitled to the storage charges claimed, and if so, how much b) Whether the 1st Respondent is entitled to the Kshs. 25,000/= sought

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Whether the Applicant is entitled to the storage charges claimed, and if so, how much 13. The evidence on record shows that a depositor left the goods in the custodian’s custody for repair on 23rd March 2023, as evidenced by the job card dated on the same date. The goods are still within the custodian’s yard/garage to date, unrepaired due to the depositor’s failure to facilitate the repair. 14. The custodian averred in order 1 on the face of the instant Applicant that the goods were deposited in their garage for repair on 23rd March 2020 by the 1st Respondent. They further averred in the grounds in support of the instant Application, as well as in the Supporting Affidavit sworn by Benta Omondi on 10 th November 2025, that the goods were deposited in their garage by the 1 st Respondent and the 2nd Respondent. 15. The 2nd Respondent denied depositing the goods at the custodian’s premises for repair. 16. This court has had the benefit of perusing the job card dated 23 rd March 2020 placed before this court by the custodian in support of their case. That job card does not give the details of whoever deposited the goods in the custodian’s garage for repair. The custodian did not address this court on that grave omission. 17. One may be quick to conclude that the goods were deposited in the custodian’s garage for repair by the 2nd Respondent since the 2nd Respondent is the goods’ registered owner. 18. However, a reading of the goods’ copy of records dated 03 rd October 2024 shows that the 2nd Respondent became the goods’ registered owner on 07th July 2020. In the absence of any evidence to

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controvert the contents of the goods copy of records, this court finds that there is no way the 2nd Respondent could have deposited the goods at the custodian’s garage before 07th July 2020. 19. The circumstances of this case required the Applicant to seek information from the registrar of motor vehicles on the ownership of the goods as at 23rd March 2020. 20. In the absence of the information on the identity of the goods’ depositor on 23rd March 2020 or the goods’ registered owner as at that date, the only conclusion to be drawn is that the goods were deposited at the custodian’s garage on 23 rd March 2020 by a person who is not a party to the instant Application. 21. Going by the reasons above, it follows that the custodian cannot seek to recover the goods’ storage charges from the Respondents. 22. The finding above would have inevitably led to the dismissal of the instant Application. However, the instant Application’s saving grace is that the goods’ current registered owner is not opposed to the sale of the goods under section 8 of the Act for the recovery of the custodian’s storage fees. 23. It is for this reason above, and the fact that the goods have remained uncollected from the custodian’s garage for over five (5) years, that this court finds that the custodian is entitled to storage fees for the uncollected goods under the Act. 24. The custodian seeks storage fees of Kshs. 500/= per day from 23rd March 2020 to 10th November 2025 amounting to Kshs. 1,026,000/=. The custodian’s counsel admitted before this court that the storage fees sought by the custodian was way above the goods' value.

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25. This begs the question of whether the custodian should be permitted to recover the storage fees of Kshs. 1,026,000/= claimed. This question was answered by P.J.O Otieno, J, in Power Solutions Limited v CMA CGM Kenya Limited & 2 others [2020] eKLR, when he rendered himself thus: “61. At paragraphs 15 and 17 of the 2nd Defendant’s counterclaim a specific sum of Kshs. 15,088,410.00 is claimed being port, storage and handling charges and value added tax payable to the counter-claimant by the plaintiff as at 31.1.2014 as a result of the plaintiff’s failure or default to pay the amounts owed since 22/5/2012. The said sum is pleaded and shown to escalate at the daily rate of USD 261 till payment in full and collection of the goods by the plaintiff. While I do not doubt that the counter-claimant is entitled to its storage charges, I am also aware that there was always a duty to mitigate losses. I have in mind the right created under the Uncollected Goods Act which the counter claimant ought to have employed, noting that as early as 01.11.2013, the court had declined to order the release of the goods and there was no injunction to restrain disposal to not only free the storage space but also recoup the sums claimed under lien, I hold that for failure to mitigate own losses, the counter-claimant should not be entitled to claim storage ad infinitum while ignoring the duty to mitigate such losses.”(Emphasis added) 26. A reading of the authority above shows that a custodian under the Act has a duty to mitigate their loss. A custodian cannot seek to recover charges for any period they wish. A custodian is expected to act diligently by moving the court for an order for the sale of uncollected goods under the Act as soon as practicable.

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27. The custodian in this case seeks storage charges of over five (5) years. Clearly, the custodian in this matter did not act diligently in a bid to mitigate their loss. The custodian was indolent in pursuing their rights under the Act. In the circumstances, this court cannot award the custodian the storage charges of Kshs. 1,026,000/= which has accumulated for a period of over five (5) years under the custodian’s indolent watch. 28. Taking the totality of the circumstances of this case into consideration, this court takes the view that a period of six (6) months from the date of the depositor leaving the goods in the custodian’s custody without ensuring the goods’ repair was enough for the custodian to move this court for the orders sought herein. 29. It is for the reasons above that this court awards the custodian storage charges worked out as follows: Kshs. 500/= x 30 (days) x 6 (months), which equals Kshs. 90,000/=. Whether the 2nd Respondent is entitled to Kshs. 25,000/= recoverable from the proceeds of the motor vehicle’s sale 30. This court has already made a finding that the 2 nd Respondent did not deposit the goods in the custodian’s garage for repair. 31. Had the custodian led evidence to prove on a balance of probabilities that the 2nd Respondent deposited the goods in their garage for repair on 23rd March 2020, this court would have dismissed the 2nd Respondent’s prayer for the balance of the purchase price of Kshs. 25,000/= due to them from Eliab Sato. 32. The 2nd Respondent’s uncontroverted evidence that they are the current registered owners of the goods (see copy of records for the goods dated 03rd October 2024), and that Eliab Sato owes them Kshs.

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25,000/= (see motor vehicle sale agreement dated 09 th July 2020) arising from the sale of the goods set in motion the provisions of section 8 (2) of the Act. 33. Section 8 (2) of the Act provides thus: 8 (2) A decision of the court authorizing a sale under this section is, subject to any right of appeal, conclusive as against the depositor of the custodian’s right to sell the goods and gives a good title to the purchaser as against the depositor: Provided that if the depositor did not own the goods the sale does not give a good title as against the owner. 34. In view of the fact that the unknown depositor of the goods does not currently own the goods they deposited with the custodian on 23 rd March 2020, it follows that the custodian of the goods cannot give good title to the goods to a purchaser under section 8 of the Act. 35. However, the goods’ current registered owner is not opposed to the sale of the goods under section 8 of the Act, provided the custodian pays them Kshs. 25,000/= which is the balance of the goods’ purchase price, which Eliab Sato owes them. 36. The foregoing shows that the custodian can only give a good title of the goods to the purchaser of the goods under section 8 of the Act after obtaining consent from the 2nd Respondent. 37. The 2nd Respondent’s consent before the sale of the goods under section 8 of the Act by the custodian will prevent the filing of suits over the ownership of the goods and recovery of Kshs. 25,000/=.

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38. In the circumstances, this court takes the position that the custodian ought to pay the 2nd Respondent Kshs. 25,000/= to regularize the sale they seek to conduct under section 8 of the Act. DETERMINATION 39. Accordingly, for the reasons set out above, this Court makes the following orders: (a) The motor vehicle registration number KCZ 823 B Toyota Axio left/stored in the Dahan Ventures’ yard/garage on 23 rd March 2020 is declared as uncollected goods (b)The Applicant is at liberty to sell the uncollected goods comprised in the Notice of Intention to Sell dated 25 th October 2024 and currently in their yard/garage by way of public auction through a licensed auctioneer at the best reasonable price in the circumstances (c) The proceeds of the sale of the uncollected goods 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 (d)The sum of Kshs. 25,000/= due to the 2 nd Respondent be recovered from the proceeds of the sale of the goods in priority to any other claims (e) That upon defraying the sums of money in (c) above, the Applicant shall release the balance of the proceeds of sale of the uncollected goods, if any, to the 2 nd Respondent for onward transmission to Eliab Sato (f) Each party to bear their costs of this Application 40. It is so ordered. Read, signed, and delivered in open Court at Bungoma this 12 th day of February 2026

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T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Ndwiga for the 2nd Respondent C/A: Mr. Rioba

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