[2001] KEHC 761 (KLR)

Source-derived case information.

Citation: [2001] KEHC 761 (KLR)
Parties: Plaintiff: David Sopon Ole Loroma; Plaintiff: Maanta Ole Putaputa; Plaintiff: Maanta Ole Lepaso; Plaintiff: Daniel Monkoti Sabaya; Plaintiff: Ngina Kipoopo; Plaintiff: Taporu Masaine; Plaintiff: Raita Lechoki; Plaintiff: Bartimaru also known as Ilpartimaru Group Ranch; Defendant: Lemono Ole Ntenkese; Defendant: Tupet Ole Murre alias Olkauet; Defendant: Samuel Ole Parashuru; Objector: Senteu Ole Sopon; Objector: Keempua Maanta; Objector: Benjamin Saidimu Ole Kuiyian; Objector: Nketunya Sabaya; Objector: Musee Kimariri Lengoseine; Objector: Sayiaro Ratia Lechonki
Court: High Court
Court Station: High Court at Nairobi (Milimani Law Courts)
Jurisdiction: Kenya
Case Number: ? 1497 of 1999
Procedural Posture: Civil Case / Ruling on Objection to Attachment of Property
Outcome: objection dismissed with costs to the defendants
Legal Topics: Execution of Decrees, Objection Proceedings, Burden of Proof, Attachment of Property
Source Language: en

Civil Procedure Execution of Decrees Objection Proceedings Burden of Proof Attachment of Property

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Summary, issues, holding and outcome

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Parties

David Sopon Ole Loroma

Plaintiff

Maanta Ole Putaputa

Plaintiff

Maanta Ole Lepaso

Plaintiff

Daniel Monkoti Sabaya

Plaintiff

Ngina Kipoopo

Plaintiff

Taporu Masaine

Plaintiff

Raita Lechoki

Plaintiff

Bartimaru also known as Ilpartimaru Group Ranch

Plaintiff

Lemono Ole Ntenkese

Defendant

Tupet Ole Murre alias Olkauet

Defendant

Samuel Ole Parashuru

Defendant

Senteu Ole Sopon

Objector

Keempua Maanta

Objector

Benjamin Saidimu Ole Kuiyian

Objector

Nketunya Sabaya

Objector

Musee Kimariri Lengoseine

Objector

Sayiaro Ratia Lechonki

Objector

Procedural Posture

Civil Case / Ruling on Objection to Attachment of Property

Legal Issues

1 Whether the objectors have established ownership of the attached cattle to prevent execution against them.
2 Whether the affidavits filed by the objectors provide sufficient evidence of individual ownership of the livestock.
3 Whether the defendants have sufficiently refuted the objectors' claims to the cattle.

Ratio Decidendi

The court found that the objectors failed to discharge the burden of proof required to establish ownership of the attached cattle. Their affidavits were vague, did not specify the number of cattle claimed or the manner of acquisition, and did not assert exclusive ownership. The evidence suggested communal ownership with their brothers, which was insufficient. The first defendant's affidavit, which was not rebutted, credibly established that the cattle belonged to the plaintiffs. Accordingly, the objections were dismissed as the objectors did not prove their claims on a balance of probabilities.

Court Disposition

objection dismissed with costs to the defendants

Orders

The objection by each of the six objectors is dismissed with costs to the defendants.
Ruling to be typed and copy supplied to objectors' counsel.

Full Case Text

Judgment text and source record

44 paragraphs

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA

AT NAIROBI

MILIMANI LAW COURTS CIVIL CASE NO. 1497 OF 1999

DAVID SOPON OLE LOROMA ……………….1ST PLAINTIFF

MAANTA OLE PUTAPUTA……………………2ND PLAINTIFF

MAANTA OLE LEPASO………………………..3RD PLAINTIFF

DANIEL MONKOTI SABAYA………………….4ST PLAINTIFF

NGINA KIPOOPO……………………………….5TH PLAINTIFF

TAPORU MASAINE……………………………..6TH PLAINTIFF

RAITA LECHOKI………………………………..7TH PLAINTIFF

(IN THEIR DUAL CAPACITIES AS OFFICERS AND MEMBERS OF BARTIMARU ALSO KNOWN AS

ILPARTIMARU GROUP BRANCH) BARTIMARU ALSO KNOWN AS

ILPARTIMARU GROUP RANCH…………….8TH PLAINTIFF

VERSUS

LEMONO OLE NTENKESE ………………….1ST DEFENDANT

TUPET OLE MURRE ALIAS OLKAUET……2ND DEFENDANT

SAMUEL OLE PARASHURU………………..3RD DEFENDANT

SENTEU OLE SOPON………………………….1ST OBJECTOR

KEEMPUA MAANTA…………………………..2ND OBJECTOR

BENJAMIN SAIDIMU OLE KUIYIAN…..……3RD OBJECTOR

NKETUNYA SABAYA…………………….…..4TH OBJECTOR

MUSEE KIMARIRI LENGOSEINE……..…….5TH OBJECTOR

SAYIARO RATIA LECHONKI…………..……6TH OBJECTOR

RULING

The six objectors object to attachment of cattle in satisfaction of the decree in favour of the defendants.

Each of the six objectors has sworn an affidavit in support of the objection. Each of them states in para 2 of the respective affidavit that the livestock proclaimed, “belong to me and to my other brothers”

The first respondent has sworn a comprehensive affidavit reply.

He deposes that he knows each of the plaintiffs at personal level for many years and that the livestock proclaimed belong to the plaintiffs. In para 11 of the supporting affidavit he states that he was personally present when auctioneers attached the livestock and that he established that only cattle belonging to the plaintiffs were attached.

He knows each of the objectors and has described the relationship of some of them with the plaintiff. For example, he states that 1st objector of the first plaintiff; that 2nd objector is son of the second plaintiff; that 4th objector is a stepbrother of the 4th plaintiff, and that 5th objector is a brother to 6th plaintiff. The objectors have not filed a reply to the affidavit of the first defendant.

The onus of proof is with each objector to establish his claim – See Michael A.O. Mashere versus Samson Asatsa Criminal Appeal No. 70/82 (Kisumu)

The affidavit of each objector is very sketchy. Each does not say how many of the attached cattle belong to him and how he acquired them.

Each does not specifically say that the cattle belong to him. Each seems to say that the cattle are communally owned by each and his respective brothers. I am not satisfied that each objector has proved by credible evidence that the cattle proclaimed belong to each. The affidavit evidence of the first defendant sufficiently refutes the claim to the cattle by each objector.

Consequently I dismiss the objection by each of the six objectors with costs to the defendants.

E. M. Githinji

Judge

4. 12. 2001

Mr. Solonka holding brief for Mr. Kilukumi for objectors present

Mr. Macharia absent

Mr. Solonka

I apply for certified copy of the ruling

Order: Ruling to be typed and copy supplied to objectors

counsel

E. M. Githinji

Judge

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