https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12529

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MOMBASA** **HCCOMM. APPEAL N0.E 017 OF 2024** **JANE WAMBUI KIBIA …..………………………………………APPELLANT** **VERSUS** **CHARLES KARANJA KIIRU…………………..…..1ST RESPONDENT** **CHARLES GITHINJI MUIGWA……………………2ND RESPONDENT** **(*Being an appeal arising from the ruling of the Honorable Gathongo Sogomo(PM) in Chief Magistrate’ Court at Mombasa Civil Case No.1222 of 2023 on 30th August 2024)*** **JUDGEMENT** This appeal arose from the ruling of Hon. Gathongo Sogomo(PM) delivered on 30th August,2024 in the Chief Magistrate Court in Mombasa in Civil Case No.1222 of 2013.In the ruling the trial magistrate dismissed the appellant’s Notice of Motion dated 16th April, 2024 .The appellant in the said application sought to preclude the 1st respondent through its agents including Hippo Auctioneers General Merchants or any other auctioneers from auctioning or in any other way disposing parcel of land know as Title No. Mweiga/Block V/Muthuini /1133 through public auction or howsoever or having proclaimed, from attaching or selling it being, allegedly, the appellant’s matrimonial home, rendering her and her children destitute. The application is in respect to objector proceedings against execution of a decree to recover Kshs.2,500,000 loaned to the 2nd respondent by the 1st respondent. In her supporting affidavit to the aforesaid application, the appellant who is the 2nd respondent’s spouse, averred that the attached property was acquired during the life of her marriage and with joint contributions between herself and the 2nd respondent and that she therefore, has equitable beneficial interest on attached property. The appellant, further, averred that selling off the attached property was tantamount to evicting her from her matrimonial home and rendering her and her children destitute. She annexed copies of a letter from the Chief, copies of their children birth certificates and photographs of the attached property to support her claim. In his response, the 1st respondent averred that the appellant made the claim of spousal interest over the subject matter herein in Nyeri ELC Civil Case No.E 012 of 2023 vide a Notice of Motion dated 23rd February,2023 which application was struck out vide a ruling delivered on 20th March , 2023 in which claim Olola, J found was abuse of the court process considering the pendency of the trial suit in respect to this matter. In his ruling, the trial magistrate pointed that the suit property was registered in the name of the 2nd respondent and that the appellant has no legal or equitable interest over the suit property. The trial magistrate also found that the issues raised by the appellant were the same or substantially the same as those raised in her previous application before the superior Court in Nyeri and was therefore *res judicata*. Based on these considerations, the trial court dismissed the appellant’s application. Being dissatisfied with the ruling, the appellant preferred this appeal. The appeal is based on the appellant’s memorandum of appeal dated 25th September, 2022 which raises 9 grounds of appeal. The said grounds can be summarized as follows: 1. That the learned trial magistrate erred in law and fact in holding that the Notice of Motion dated 16th April, 2024 was *res judicata* 2. That the trial magistrate erred in law and fact by finding the appellant had not established her case to the required standard as pertains the Notice of Motion dated 16th April 2024 notwithstanding the overwhelming evidence produced equitable interest in the subject property herein. In the appeal, the appellant prays that the subordinate court’s findings be set aside, overturned and or varied and substituted with a finding of this Honorable Court allowing the Notice of Motion dated 16th April 2024. This appeal was argued by way of written submissions. The appeal is primarily between the appellant and 1st respondent. In his submissions the 1st respondent conceded that the learned trial magistrate erred in finding that application dated 16th April 2025 was *res judicata*. This Court will, therefore, focus on the parties’ submissions on the outstanding ground. In her submissions, the appellant through Counsel pointed the Court to the provisions of Order 22 Rule 51 of the Civil Procedure Rules,2010 which provide the legal framework for objection proceedings. The said rule states: **“51 (1) A person claiming to be entitled to or to have legal or equitable interest may at any time prior to payment out of the proceeds of sale of such property give notice in writing to the Court and to all parties and to the decree-holder of his objection to the attachment of such property.** **(2) Such notice shall be accompanied by an application by affidavit and set out in brief the nature of the claim which such objector or person makes the whole or portion of the property attached.”** Counsel for the Appellant also pointed out legal threshold for invoking order 22 Rule 51 was expounded in the case of **Machira Messiah & Company,Advocates vs. Katana Kalume Ndurya; Kalume Kenga Katana (Objector) [2021]eKLR .** Citing Dennis Principles of Evidence,2nd Edition the court stated in the case that the objector must demonstrate the following: 1. That they are persons against whom the decree was issued. 2. That the property in their possession has been proclaimed or attached to satisfy the decree 3. That they have a legal or equitable in the whole or part of the attached property and 4. That no proceeds from the sale of the attached property have been paid out. The applicable test, the appellant counsel stated was also set out in the case of **Chotabhai M. Patel v. Chaprahhi Patel (1958) 743**. In the case it was held that the court must determine 1. Whether the applicant had possession and/or interest in the property as at the of date of attachment 2. Whether the passion was held on her behalf or in trust for the Judgement debtor 3. That the legal title is only relevant in so as it in forms whether such possession and interest was independent or derivative of the judgement debtor In this case, Counsel for the appellant submitted that the appellant has established a legal and equitable interest in the suit property, which is her matrimonial home under section 6 of the Matrimonial Property Act. Although the title of the property is registered solely in the name of the 2nd respondent, Counsel submitted, the evidence before the trial court confirmed that the property was jointly acquired during the subsistence of their marriage in 2009 and has been their matrimonial home since 2012.The appellant produced the following documents as evidence confirming the attached property is her matrimonial home, Counsel for appellant submitted, which have not been rebutted by the 1st respondent -copies of the title in the name of the judgement debtor, their children birth certificates, sale agreements and title deed; letter from the chief conforming the attached property is her matrimonial home, photographs of the attached property and affidavit of marriage marked JKW-1, JW1-2.JWK-3, JWK-4,JWK-5 and JWK-6. The appellant, further, relied on the Court of Appeal **Judgement in Mombasa Civil Appeal No.71 of 2016** inrespectwhere the court in paragraph 6 expressly acknowledged the 2nd respondent matrimonial home. In **MWK vs. PKM; Equity Bank (Kenya) Limited (interested) (2019) eKLR**,Counsel for theappellant, further, pointed out, the Court held that spousal interest exists even where legal title is solely in one’s spouses name. The Court also, Counsel pointed out, held that spousal overriding interest under common law and equity binds third parties and cannot be ignored in execution proceedings. In this regard, Counsel for the Appellant submitted, the trial Court failed to appreciate that at the time of attachment of on 13th November, 2014, the appellant who was in occupation of the suit property had overriding beneficial and equitable interest therein and was therefore, entitled to protection under Matrimonial Property Act and Common Law. In response, the 1st Respondent Counsel submitted appellant’s evidence has the following inconsistencies: 1. While the appellant contended, she was married in 2006 and has been living in the suit property ever since, the title she presented shows the property was acquired in 2011.The alleged marriage between the appellant and 2nd respondent, Counsel for the 1st Respondent stated, is at variance with the birth of their 1st child in 2001. 2. In March, 2023 counsel for the respondent pointed out, the Appellant registered a caution over the property indicated her interest as “licencee” not spouse whereas section 12(2) of the Matrimonial Property Act declares that a spouse’s interest over the matrimonial property is registrable as a caution. 3. In respect to the photographs supposedly of the objector’s family home, the 1st respondent’s Counsel submitted that there is nothing in the photographs that supported the appellant’s narrative and that the photographs were, if any probative value (**see:** **Mberia & 3 Others vs.County Secretary of Meru & 2 Others( Interested parties)( 2022) KEELRC 13567(KLR)** In objection proceedings, Counsel for the 1st respondent submitted, the burden is on the objector to present cogent evidence to prove her interest (**relied on decision in** **Tingo Investment Limited vs. Mirema Enterprises Limited (2015) KECA 246 KLR.)** In this regard,Counsel for the 1st respondent urged the Court to find that the trial magistrate exercised his discretion judiciously and can not be faulted. The Court has carefully re-evaluated the evidence adduced before the trial Court. It has also considered the evidence submissions by the parties. This being first appeal the Court is obligated to re-evaluate the evidence adduced in the trial in order to arrive at its own independent conclusion (see **Selle vs Associated Motor Boat Company (1968) EA).** Having analyzed the evidence on record, the pleadings and submissions by the parties, the court only identified one issue for determination. The issue is whether the applicant has proved legal or equitable interest over the suit property. It is not in dispute that the appellant is 2nd respondent’s spouse Although the title of the subject property herein is registered solely in the name of the 2nd respondent, evidence on record show the suit property has been their matrimonial home since 2012.The appellant produced the following documents as evidence confirming the attached property is her matrimonial home, which were not been rebutted by the 1st respondent -copies of the title in the name of the judgement debtor, their children birth certificates, sale agreements and title deed; letter from the chief confirming the , photographs of the attached property and affidavit of marriage marked JKW-1, JWK-2.JWK-3, JWK-4,JWK-5 and JWK-6 .The Court of Appeal Judgement in **Mombasa Civil Appeal No.71 of 2016** in paragraph 6 expressly acknowledged the sight property is the 2nd respondent matrimonial home. The alleged discrepancies raised in respect to the birth of the appellant’s first child in 2001 and that the appellant registered inhibition on the subject property as a licencee and not spouse are not, in my view, material to the issue before Court It is also my finding that the trial Court erred in finding that that since the appellant did not prove co-ownership of the suit property, she did prove legal and equitable interest in the suit property. In **MWK vs. PKM case** cited by the appellantthe Court rightly held thatspousal interest exists even where legal title is solely in one’s spouses name and can not be ignored in execution proceedings. Based on the Court’s findings above, this appeal succeeds. The Court, therefore, set aside the trial court finding that the appellant has no equitable and legal interest over the suit property and allows the appellant’s Notice of Motion dated 16th April 2024.The Court, however, declines to award the appellant costs of the appeal since the 2nd respondent who is the appellant spouse owes the 1st respondent the subject decretal sum herein. **Dated, signed and virtually delivered via Microsoft teams this 3rd day of June 2026.** **HON. P.K. ROTICH** **JUDGE**