[2006] KEHC 2385 (KLR)
The court found that the attachment of the vehicle was not irregular, as there was evidence of a proclamation issued on 7th June 2005. The transfer of the vehicle to the objector occurred after the attachment, and thus could not defeat the decree-holder's right to execute against the property. The objector failed to...
Source-derived case information.
- Citation
- [2006] KEHC 2385 (KLR)
- Parties
- Plaintiff: East African Packaging Industries Ltd; Defendant: Mona Fresh Vegetables Ltd; Objector: EastWest Veg. Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 768 of 2002
- Procedural Posture
- Civil Case / Ruling on Objector Application Regarding Attachment of Property
- Outcome
- application dismissed
- Legal Topics
- Execution of Decrees, Attachment of Property, Objector Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
East African Packaging Industries Ltd
Plaintiff
Mona Fresh Vegetables Ltd
Defendant
EastWest Veg. Limited
Objector
Procedural Posture
Civil Case / Ruling on Objector Application Regarding Attachment of Property
Legal Issues
- 1 Whether the attachment of motor vehicle KAM 808J was unlawful as claimed by the objector.
- 2 Whether the transfer of the vehicle to the objector after attachment invalidates the execution process.
- 3 Whether the manner of attachment was irregular due to alleged lack of proper proclamation.
Ratio Decidendi
The court found that the attachment of the vehicle was not irregular, as there was evidence of a proclamation issued on 7th June 2005. The transfer of the vehicle to the objector occurred after the attachment, and thus could not defeat the decree-holder's right to execute against the property. The objector failed to establish a superior right to the vehicle as against the decree-holder, especially since the transfer appeared to be an attempt to avoid execution. Consequently, the application to lift the attachment was dismissed, and the stay of execution was vacated to allow the decree-holder to proceed with execution.
Court Disposition
application dismissed
Orders
- The objector's application dated 3rd August 2005 is dismissed with costs to the decree-holder.
- The stay of execution is vacated to enable completion of the execution process.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 768 of 2002
EAST AFRICAN PACKAGING INDUSTRIES LTD.......................................................….PLAINTIFF
VERSUS
MONA FRESH VEGETABLES LTD. .……..….............................................………… DEFENDANT
EASTWEST VEG. LIMITED ………………...............................................…….…………OBJECTOR
RULING
The objector has brought this application with a view to having the attachment of its property declared unlawful. The property which was attached and which is the subject matter of this application is a motor vehicle registration number KAM 808J.
In support of the application, the Managing Director of the Objector swore an affidavit, stating that the vehicle in issue belongs to the objector. A copy of the logbook was attached to the said affidavit, and it shows that the vehicle was the property of EastWest Veg. Limited of P. O. Box 47105 – 0500, Nairobi.
Mr. Zumo, the advocate for the objector notified the court that the vehicle had been transferred to his client on 30th April 2006.
He also submitted that the manner of attachment was irregular as there was no proclamation before the attachment was effected.
For those reasons, the objector asked the court to uplift the attachment.
But the decree-holder believes that the objector is undeserving of the remedy sought. It submitted that the prayer sought was one for a declaration that the vehicle belongs to the objector; and that to become entitled to obtain such an order the objector would have to prove ownership of the vehicle.
The decree-holder pointed out that the decree herein was dated 6th February 2003. Therefore, the transfer of the vehicle to the objector, on 30th April 2006 was seen as a deliberate attempt by the judgement/debtor, to defeat execution. In that regard, it should be noted that the logbook shows that the vehicle belonged to the judgement-debtor before it was transferred to the objector.
The decree-holder emphasized that in its considered opinion the attachment was not unlawful, as alleged by the objector. It was pointed out that the Notice of Intention to Proceed with Attachment, which is dated 1/8/05, makes reference to a Notice of Proclamation dated 7/6/05. In effect, the decree-holder is denying the assertions by the objector, that the only proclamation in this matter was dated 19th July 2005, which was also the date when the attachment itself was carried out.
As the said Notice of Intention to Proceed with Attachment is dated 1st August 2005, that means that as at the date of its issuance, the decree-holder did not yet know that the objector would challenge the manner in which the attachment was carried out. Therefore, the decree-holder had no reason, at that time to make reference to "the Notice of Proclamation dated 7th June 2005. " In the circumstances, I find that there was a proclamation, and that it was issued on 7th June 2005. In other words, the attachment was not irregular.
However, the most significant consideration in this application is the fact that the transfer of the property occurred long after the attachment was in place. The objector itself concedes that the attachment took place on 19th July 2005. Therefore, by the time the vehicle was being transferred to the objector, on 30th April 2006, it was already the subject of attachment. In the circumstances, this court would be failing in its duty, if it were to allow the judgement-debtor to avoid execution by causing the vehicle to be transferred to the objector. Accordingly, I find no merit in the application dated 3rd August 2005, and the same is hereby dismissed, with costs to the decree-holder.
The stay of execution is hereby vacated, so as to enable the process be completed.
If the objector was an innocent victim of the judgement-debtor, it may take appropriate action against the said judgement-debtor. But the dispute between those two parties should not stand in the way of the decree-holder's execution process.
It is so ordered.
Dated and Delivered at Nairobi this 5th day of June 2006.
FRED A. OCHIENG
JUDGE