[2012] KEHC 5990 (KLR)
The court found that the objector had established ownership of the motor vehicle through documentary evidence and, in the absence of any controverting affidavit from the decree holder regarding the household goods, her affidavit asserting ownership was sufficient. The court noted the practical difficulties in...
Source-derived case information.
- Citation
- [2012] KEHC 5990 (KLR)
- Parties
- Plaintiff: Business Partners International Kenya SME Fund Ltd; Defendant: Zingo Investments Limited; Defendant: Robert Njoka Muthara; Objector: Evangeline Wanjira Njoka
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 797 of 2009
- Procedural Posture
- Civil Suit / Ruling on Objection Proceedings to Execution
- Outcome
- Objection allowed. Attachment and proclamation over all goods lifted. Costs of attachment to be paid by decree holder. No costs awarded to objector for the motion.
- Judges
- K Kimondo
- Legal Topics
- Execution of Decrees, Objector Proceedings, Ownership of Attached Property, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Business Partners International Kenya SME Fund Ltd
Plaintiff
Zingo Investments Limited
Defendant
Robert Njoka Muthara
Defendant
Evangeline Wanjira Njoka
Objector
Procedural Posture
Civil Suit / Ruling on Objection Proceedings to Execution
Legal Issues
- 1 Whether the objector has proved ownership of the household goods listed in the proclamation.
- 2 Whether the attachment and proclamation over the goods should be lifted in favour of the objector.
- 3 Who should bear the costs of the attachment and objection proceedings.
Ratio Decidendi
The court found that the objector had established ownership of the motor vehicle through documentary evidence and, in the absence of any controverting affidavit from the decree holder regarding the household goods, her affidavit asserting ownership was sufficient. The court noted the practical difficulties in proving ownership of household items, especially where they are located in a jointly owned residence with the judgment debtor. Since the decree holder only challenged ownership through grounds of opposition and not through evidence, the objector's claim stood uncontroverted. The court therefore ordered the lifting of the attachment and proclamation over all the goods listed, with...
Court Disposition
Objection allowed. Attachment and proclamation over all goods lifted. Costs of attachment to be paid by decree holder. No costs awarded to objector for the motion.
Orders
- Proclamation and attachment as to all properties listed in the proclamation dated 24th February 2012 are raised.
- Goods to be released forthwith to the objector.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
CIVIL SUIT NO. 797 OF 2009
BUSINESS PARTNERS INTERNATIONAL KENYA
SME FUND LTD ……………………………………….……. PLAINTIFF
VERSUS
ZINGO INVESTMENTS LIMITED………………….….1ST DEFENDANT
ROBERT NJOKA MUTHARA ………………………..2ND DEFENDANT
RULING
1. This ruling relates to objection proceedings brought by Evangeline Wanjira Njoka. By a notice of motion dated 27th February 2012, she prays that execution of the decree under a proclamation by Domicile Auctioneers be stayed. She states that the goods listed in that proclamation belong to her and not the judgment debtor. The objector avers that she is not indebted to the decree holder and has no relationship with the judgment debtor.
2. The application is expressed to be brought under order 22 rule 51 (2) of the Civil Procedure Rules. It is supported by an affidavit of the objector sworn on 27th February 2012.
3. The application is opposed by the decree holder. There are filed grounds of opposition dated 28th February 2012. The decree holder acknowledges that motor vehicle KBP 354 N Toyota Prado listed in the proclamation belongs to the objector. By a consent order recorded in court on 2nd March 2012, I ordered that the attachment and proclamation over the vehicle be lifted at the cost of the decree holder.
4. The decree holder states that all the other items in that proclamation do not belong to the objector. At the very least, the decree holder says there is no evidence of ownership by the objector. The decree holder thus prays that the remainder of the motion be dismissed with costs.
5. I take the following view. The other goods listed in the proclamation are general household items. They include a television, refrigerator, sofa set, coffee table and a gas or electrical cooker. The objector says the properties belong to her and are in a house she owns. She has exhibited a copy of the title over LR No 209/10504/11 jointly owned with one Robert Njoka Muthaura. The latter is the judgment debtor. It is not deponed to, but it would seem there is a connection between the objector and the judgment debtor. That is why the proclaimed goods are in their joint property. It then follows that in the absence of any documentary evidence, it can be presumed that all or some of the household items either belong to one of them or both of them. Unlike a motor vehicle that has registration documents, many household items have no proprietary documents. Receipts on purchase may be long lost. In a marriage situation, it becomes increasingly difficult to assign ownership of household items between the couple. Strict proof becomes very difficult. But it would be desirable. See James Kariuki Nganga T/A Ndarugu Merchants Vs Joseph Ngae and another Nairobi, High Court case No 575 of 2003 [2004] e KLR.
6. If the decree holder had presented a deposition to controvert the claim on ownership by the objector, the objector would have required to say a little more. But at the moment, I am faced with an affidavit by the objector in which she asserts ownership. That cannot be controverted by a statement in the grounds of opposition that the goods do not belong to her. It matters little that the judgment debtor stays in the same household. The objector, as earlier stated has proved she is the owner of motor vehicle KBP 354 N Toyota Prado listed in the proclamation. I have no evidence or cause to doubt her claim on ownership of the household goods in the proclamation.
7. Accordingly, in terms of order 22 rule 53, I raise the proclamation and attachment as to the whole of all the properties listed in the proclamation dated 24th February 2012 by Elam Lumwaji trading as Domicile Auctioneer Services. The goods shall be released forthwith to the objector. The costs of the attachment including any advertisement or storage charges shall be paid by the decree holder. As I have expressed certain doubts as to ownership and in view of the fact that the goods are in a residence shared with the judgment debtor, I decline to award the objector any costs on the motion.
It is so ordered.
DATEDand DELIVERED at NAIROBI this 20th day of April 2012.
G.K. KIMONDO
JUDGE
Ruling read in open court in the presence of
Mr. Ogunde for the decree holder.
Mr. Mureithi for the Objector.