[2021] KECPT 290 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

CTC NO. 238 OF 2020

ARTHUR CHEGE & OTHERS ..........CLAIMANT

VERSUS

GERALD MUCHOKI KIHAHU......RESPONDENT

AND

SAIDIKA INVESTMENTS....................OBJECTOR

RULING

1. The Application for determination is dated 18/5/21 brought under Section 3A, of the Civil Procedure Act, Order 22 Rule 51(2) and Order 51 Rule (1) of the Civil Procedure Rules 2010and seeks the following orders; -

1. That this Application be certified urgent and be heard on priority basis.

2. That Honourable Court be pleased to grant an order of stay of execution of proclamation of attachment of all House Goods attached and Motor Vehicle registration number KCD xxxx which is in the schedule of moveable property dated 13th may 2021 by icon auctioneers and all consequential orders issued pursuant to warrant of attachment dated 26th November 2020 in execution of decree of the court passed on 22nd October, pending hearing and determination of this Application.

3. The Claimant/ Decree Holder, either by himself, servants, agents, auctioneers be restrained from carrying out any disposition with respect to all house goods and Motor Vehicle registration number KCDxxxx.

4. The notification of sale of moveable property dated 13th may 2021 issued pursuant to the warrants of attachment dated 26th November 2020 in execution of decree of court be set aside with respect to all the house hold good and Motor Vehicle registration number KCDxxxx.

5. The Honourable Court issues an order compelling the Claimants either by themselves, their servants and agents to unconditionally release the House Hold Goods and Motor Vehicle Registration Number KCD xxxx.

6. The cost of this Application be provided for.

2. The same is premised on the grounds on the face of the Application to wit the Objector states that pursuant to a loan agreement dated 8/7/20, the Objector issued the Judgement Debtor a loan of Ksh750,000/=

The security offered by the Judgment Debtor was his house hold goods together with his motor vehicle registration number KCDxxxx. The security were registered underSection 4 of Chattel Transfer Act cap 28 laws of Kenya, the Objector and Judgment Debtor registered as joint owner of Motor vehicle KCDxxxx until loan is cleared.

That the house holds and motor vehicle registration number KCDxxxxshould not be attached as the Objector has legal rights over them.

The Application was supported by the Affidavit of Edward Kimondo sworn on 18/5/21 stating the loan by the Judgment Debtor is yet to be paid.

The Claimant`s Auctioneers have wrongfully proclaimed the household goods together with motor vehicle registration number KCDxxxx in satisfaction of the decree.

That the court has unfettered discretion to order the Claimant and its agents to return the attached goods together with the motor vehicle.

3. The Claimant/ Respondent filed a Replying Affidavit in respect to the Application opposing the same sworn by Arthur Chege on 31/5/21.

He states that there is no evidence attached by the Objector to evidence to show that the Judgment debtor has failed to repay the alleged loan or whether the Judgment Debtor ever received a loan from the Objector.

The Judgment Debtor has not responded to the Application which indeed raises eyebrows. It is suspicious that the Judgment Debtor did not respond at the time of proclamation and awaits until attachment for them to act.

That the actions of the Judgement Debtor amounts to collusion, fraud, conspiracy to defraud and non-disclosure of material facts aimed to defeat the ends of justice and frustrate the execution process.

That Objector acknowledges that the Auctioneers served all the proclamation and warrants of attachment notices to the Judgement Debtor before attachment was done and thus the Objector cannot now say the attachment was unlawful.

He further avers if the Honorable Court finds the goods are co-owned between Objector and Judgment Debtor, the Judgement Debtor ought to be issued with summons for committal to civil jail and Warrants of Arrests to issue.

That Application be dismissed.

4. The parties were to file submissions. The Objectors submissions dated 17/6/21 were filed on23/6/21and Claimant / Decree Holder written submissions dated 29/6/21 were filed on 30/6/21.

Upon analysis of all the Applications and response therein the issues for determination are thus:

Issue One.

Whether the attached goods belong to the Objector and Judgment Debtor

Issue two.

Whether the Claimant/ Decree Holder can attach the goods to satisfy the decree of this Honorable Tribunal.

5. Issue One.

Whether the attached goods belong to the Objector and Judgment Debtor

The Objector filed an Application stating the goods attached belong to them vide Section 4 Chattels Transfer Act Cap 28 which states

“All persons shall be deemed to have notice of an instrument and of the contents therewith when that instrument has been registered as provided by this Act. Provided that registration of instrument is not rendered pursuant to the provisions of this Act, prior registration shall not be deemed to operate as notice after the lapse of period within which is required by this Act…”

Order 22 Rule 51(1) of the Civil Procedure Rules 2010 provides that:

“ Any person claiming to be entitled to have a legal or equitable interest…….”

The Objector have demonstrated how he came to have Judgment Debtor`s household good and Motor Vehicle Registration number KCDxxxx in his name.

The legal and equitable interest have been established by the Objector with regards to the proclaimed property. There is indeed a nexus between the Objector and Motor Vehicle registration numberKCD xxxx.

A search of Motor Vehicle has been attached to the Objector`s Supporting Affidavit marked annexture EK 1 page 32 – 34. The Objector is a co-owner of the said motor vehicle.

6. Despite the Judgment Debtor not attending these proceedings the Objector does have a right to object the sale of the attached goods as they are under his name despite the same having been proclaimed to satisfy a decree of this Honorable Court.

To this end despite the Claimant/ Decree Holder submitting that the Judgment Debtor was trying to frustrate their efforts the goods proclaimed are in joint names of the Judgement Debtor and Objector which fact cannot be denied.

The Objector not being a party to the proceedings and his property should therefore not be used to satisfy the decree.

7. A simple search by the Claimant/ Decree Holder especially on the Motor Vehicle KCDxxxx would have shown the owners of the said proclaimed motor vehicle.

The failure by Judgment Debtor not having informed them of the joint ownership is not one that can be discussed at this stage.

In the case of Precast Portal Structures Vs Kenya Pencil Company Ltd & 2 Others [1993] eKLR

“The burden is for the Objector to prove and establish his rights to have the attached property released from attachment. On the evident on material before the Court, a release from attachment may be made if the court is satisfied; -

i. That the party was not when attached, held by the Judgment Debtor or himself or by some other person in trust or the Judgment Debtor or,

ii. That the Objector holds that property in his own account.”

We thus find that the Objector has indeed established a legal or equitable interest in the whole or part of any property attached in execution.

The Claimant/ Decree Holder alludes to fraud by the Judgment Debtor in a bid to defeat justice. However, much this may be or not the situation at hand is whose property was attached?

The allegations being made are not issues which this Honorable Tribunal have mandate to look into decree herein.

8. Issue two.

Whether the Claimant/ Decree Holder can attach the goods to satisfy the decree of this Honorable Tribunal.

The property is the name if the Judgment Debtor and the Objector herein. It thus follows that the same cannot attached by Auctioneers to satisfy the decree.

The property attached therein does not belong to the Judgment Debtor but is co-owned making it impossible for the decree to be satisfied using the Judgment Debtor`s household goods and motor vehicle registration number KCD xxxx.

To this end,

1. The Application dated 18/5/21 is allowed in terms of prayer 3, 4 and 5.

2. The Claimant/ Decree Holder to have the cost of this Application.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF SEPTEMBER, 2021

HON. B. KIMEMIA CHAIRPERSON SIGNED 2. 9.2021

HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 2. 9.2021

MR. GITONGA KAMITI MEMBER SIGNED 2. 9.2021

MR. B. AKUSALA MEMBER SIGNED 2. 9.2021

TRIBUNAL CLERK R. LEWERI

ANYONA ADVOCATE FOR OBJECTOR: PRESENT

CHIMEI ADVOCATE FOR CLAIMANT/RESPONDENT PRESENT

NO APPEARANCE FOR RESPONDENT

HON. B. KIMEMIA CHAIRPERSON SIGNED 2. 9.2021