[2022] KEHC 12519 (KLR)

Giddie v Bhatti & 2 others; Bhatti (Objector); Mbeki Auctioneers (Auctioneer) (Civil Case 231 of 2015) [2022] KEHC 12519 (KLR) (Civ) (17 May 2022) (Ruling)

Neutral citation: [2022] KEHC 12519 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 231 of 2015

JK Sergon, J

May 17, 2022

Between

Dr Kamal S Giddie

Plaintiff

and

Mehreen Bhatti

1st Defendant

Meherish Bhatti

2nd Defendant

Shama Asif

3rd Defendant

and

Zhakan Bhatti

Objector

and

Mbeki Auctioneers

Auctioneer

Ruling

1. The objector/applicant in this instance has brought the notice of motion dated July 28, 2021 supported by the grounds set out in its body and the facts stated in his affidavit.The applicant sought an order for stay of execution against the plaintiff, who has proclaimed his property through Mbeki auctioneers despite not being a party to the suit.

2. The plaintiff/decree holder swore a replying affidavit dated September 27, 2021 to oppose the motion.

3. When the motion came up for interparties hearing before this court, the parties respective advocates chose to rely on the averments made in their respective affidavits.

4. I have considered the grounds laid out on the body of the motion, the facts deponed in the affidavits supporting and opposing it.

5. A brief background of the matter as seen in the record is that the plaintiff/decree holder instituted a suit against the applicant vide the plaint dated June 22, 2015 and sought for a written and equivocal apology, an injunction and damages arising out of the tort of defamation.

6. Upon hearing the parties, judgment delivered on December 13, 2019 was entered in favour of the plaintiff/decree holder against the defendants jointly and severally in the sum of Kshs 3,000,000/=.

7. On July 23, 2021, the plaintiff/decree holder proclaimed and subsequently attached the 1st and 2nd defendants movable properties in execution of the decree issued herein on June 9, 2021 against the defendants. Being aggrieved by the aforementioned proclamation the applicant/objector filed this application.

8. In his affidavit filed in support of the motion dated July 28, 2021, Mr Zhakan Bhatti stated that he is the 1st defendant's brother, who has been living in his house with his family and has no source of income since she lost her work due to the present covid 19 pandemic, and she has been completely depending on him.

9. He avers that he is aware of the current suit because the 1st defendant has briefed him on it from time to time, but that he was never a party to it, and that on July 23, 2021, auctioneers from Mbeki auctioneers came to his house and purported to proclaim the goods, which were his household goods that did not belong to the 1st defendant, whom he has assisted as his sister.

10. He contends that it was wrong for the said auctioneers to purport to proclaim the said household goods as they do not belong to the 1st defendant but himself.

11. In response, Dr Kamal S Giddie stated that this application is grossly misconceived, gravely misplaced, mischievous, frivolous, scandalous and vexatious and that the same constitutes an abuse of the court process and as such it should be dismissed with costs.

12. He stated that he lawfully proclaimed and subsequently attached the 1st and 2nd defendants movable properties including his motor vehicle registration No KBS 042 Q in execution of the decree issued on June 9, 2021 against the defendants.

13. He further stated the applicant/objector has failed to establish any legal or equitable interest with regard to the proclaimed properties and as such the application has been filed in bad faith and as an afterthought in order to deny the plaintiff his fruits of litigation.

14. The principles guiding the grant of an application for stay of execution pending appeal are well settled. These principles are provided under Order 42 rule 6(2) of the Civil Procedure Rules which provides as follows:i.The application should have been brought without unreasonable delay;ii.The applicant must demonstrate the substantial loss to be suffered; andiii.There must be provision of security for the due performance of the decree or order being appealed against.

15. On the first condition, from my study of the record I note that the proclamation took place on July 23, 2021 which is (5) five days prior to the filing of the instant motion. I therefore find that there has been no unreasonable delay in bringing the motion.

16. Under the second condition on substantial loss, it is apparent from the motion that the applicant/objector is anxious that unless an order for a stay of execution is granted and the plaintiff/decree holder proceeds to attach the said household goods and vehicle they will stand to suffer irreparable loss and damage considering the fact that he is not a party to the suit. On the other hand the plaintiff/decree holder states that no proof of purchase of the household goods has been provided neither have they provided a logbook over the motor vehicle that have been attached.

17. Having considered the material placed before this court it is clear that the objector is required under the law to establish the proprietory interest in the goods attached. The objector failed to discharge the burden of proof. She was unable to tender credible evidence showing that she owns the attached household goods. She also failed to tender evidence to prove ownership of the proclaimed motor vehicle registrationNoKBS 042Q.

18. In the circumstances of this case the objector’s application is for dismissal. Consequently, the motion dated July 28, 2021 is hereby ordered dismissed with costs to the plaintiff.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF MAY, 2022. J. K. SERGONJUDGEIn the presence of:……………………………. for the Plaintiff……………………………. for the Defendant