Polycap Okumu Ochola,Guardforce Security Limited v Dubai Kenya Limited, Zachariah Baraza T/A Siuma Auctioneers (Civil Case 46 of 2013) [2013] KEHC 694 (KLR) (19 December 2013) (Ruling)

Citation: Polycap Okumu Ochola,Guardforce Security Limited v Dubai Kenya Limited, Zachariah Baraza T/A Siuma Auctioneers [2013] KEHC 694 (KLR)
Media Neutral Citation: [2013] KEHC 694 (KLR)
Court: High Court
Court station: High Court at Mombasa
Case number: Civil Case 46 of 2013
Judges: MM Kasango
Judgment date: 19 December 2013
Language: English
Type: Judgment
Original source file: Download DOC (28.0 KB)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL SUIT NO. 46 OF 2013

POLYCAP OKUMU OCHOLA…………..……………………. 1^ST PLAINTIFF

GUARDFORCE SECURITY LIMITED ……….……………….. 2^ND PLAINTIFF

V E R S U S

DUBAI KENYA LIMITED …………………………………. 1^ST DEFENDANT

ZACHARIAH BARAZA T/A

SIUMA AUCTIONEERS …………………..……………… 2^ND DEFENDANT

RULING

From the pleadings it is clear that the first Defendant advanced a loan to the Plaintiff which was secured by the Plaintiff's property No. MN/1/1861 Nyali Mombasa. The Plaintiff pleaded that on 19th March 2013 the first Defendant through its agent 2nd Defendant issued a notice to sell that security by public auction. It was the Plaintiff's prayer in the plaint for permanent injunction to be issued restraining the Defendants from advertising, selling or transferring that property.

By a consent order of 23rd July 2013 between the Plaintiff and the 1st Defendant the Plaintiff undertook to pay the amount of Kshs. 15 million to the first Defendant by instalments. It was also agreed that on final payment of that amount the suit between the Plaintiff and the first Defendant would be marked as settled. In that consent the Plaintiff agreed to pay the first Defendant costs of the suit.

That consent did not include the 2nd Defendant. The suit therefore between the Plaintiff and the second Defendant continues to subsist. It is for that reason that I find the second Defendant's prayer for costs of the suit to be awarded to him to be premature. Costs of the second Defendant can only be ascertained at the conclusion of the suit filed against it and only if such costs are awarded to the second Defendant.

The Court therefore declines to award the second Defendant's costs as sought. The second Defendant should first seek to conclude the case between it and the Plaintiff. It is so ordered.

Dated and delivered at Mombasa this 19^th day of December, 2013.

MARY KASANGO

JUDGE

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