[2011] KEHC 3918 (KLR)
The court found that the objector failed to discharge the burden of proof required to establish a legal or equitable interest in the attached goods. The objector did not provide any evidence to demonstrate ownership or interest in the proclaimed goods, including the motor vehicles and household items. The court also...
Source-derived case information.
- Citation
- [2011] KEHC 3918 (KLR)
- Parties
- Plaintiff: Jayesh Sainai; Defendant: Charles Mutisya Nyamai; Objector: Winfred Mulekye Kiamuko
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 225 of 2009
- Procedural Posture
- Civil Suit / Ruling on Objection to Attachment of Property in Execution Proceedings
- Outcome
- objection dismissed with costs to the decree holder
- Legal Topics
- Execution of Decrees, Attachment of Property, Burden of Proof Objector, Interest in Attached Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jayesh Sainai
Plaintiff
Charles Mutisya Nyamai
Defendant
Winfred Mulekye Kiamuko
Objector
Procedural Posture
Civil Suit / Ruling on Objection to Attachment of Property in Execution Proceedings
Legal Issues
- 1 Whether the objector has a legal or equitable interest in the attached goods sufficient to prevent their attachment in execution of the decree.
- 2 Whether the objection proceedings were properly instituted given the advocate's lack of a practicing certificate.
Ratio Decidendi
The court found that the objector failed to discharge the burden of proof required to establish a legal or equitable interest in the attached goods. The objector did not provide any evidence to demonstrate ownership or interest in the proclaimed goods, including the motor vehicles and household items. The court also noted procedural irregularities regarding the advocate's lack of a practicing certificate but based its decision primarily on the lack of evidence of ownership. Consequently, the objection was dismissed and the attachment allowed to proceed.
Court Disposition
objection dismissed with costs to the decree holder
Orders
- The objection by Winfred Mulekye Kiamuko is dismissed.
- Costs awarded to the decree holder.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
THE COMMERCIAL AND TAX DIVISION OF THE HIGH COURT
CIVIL SUIT NO. 225 OF 2009
JAYESH SAINAI.......................................................PLAINTIFF
VERSUS
CHARLES MUTISYA NYAMAI........................DEFENDANT
AND
WINFRED MULEKYE KIAMUKO......................OBJECTOR
R U L I N G
The objector in the Chamber Summons dated 30th August, 2010, brought under Order XX1 Rules 56 and 57 of the Civil Procedure Rules (2009 Revised Edition) and Section 3A of the Civil Procedure Act (CAP 21 of the Laws of Kenya) objects to the attachment of four (4) Motor vehicles , Sofa Sets, a Television Set, a Gas Cooker, Gas Cylinder and a Refrigerator proclaimed for attachment on 10th August, 2010, in execution of the Respondent’s decree issued herein on 5th August, 2010. The objector states quite correctly that she is not a party to the suit in which the decree was issued against the Judgment debtor.
In the affidavit sworn by the objector in support of the Chamber Summons the she depones that the proclaimed motor vehicles belonged to one Family International (her employer) and National Bank of Kenya Ltd but that the same have since been restored to the beneficial owner. The objector claims that none of the attached goods belong to the judgment debtor.
The application is opposed on the strength of the Replying Affidavit of the Plaintiff/Decree Holder sworn on 28th October 2010, in which he depones that the proclamation was done at the judgment debtor’s residential house and that, according to information obtained from the court broker who effected the proclamation, the judgment debtor was present when the proclamation was carried out on the morning of 10th August 2010. He has deponed also that one of the three (3) proclaimed motor vehicles KBC 313Z Toyota Land Cruiser belongs to the judgment debtor. His position is that the objector has not demonstrated any interest, legal or equitable in the proclaimed goods and should have her objection disallowed being a gross abuse of the process of court. Another challenge posed in regard to the objection was that the proceedings were taken out by an advocate who did not possess a practicing certificate, as proved by a letter dated 6th September 2010 from the Law Society of Kenya, annexture “JS1a”. The said advocate did not attend at the hearing of the objection.
Counsel for the Decree holder submitted orally in court on the strength of the Replying Affidavit. He told the court that the objector had not discharged her onus to prove a legal or equitable interest in the proclaimed goods. I find this to be so in view of what has been stated concerning the motor vehicles and also because the objector has produced no evidence whatsoever to prove that she and not the Judgment debtor owns the other attached goods.
For the reasons stated hereinabove the objection fails and is hereby dismissed with costs to the Decree holder.
DELIVERED andSIGNEDatNAIROBIthis25THday ofFEBRUARY, 2011.
M. G. MUGO
JUDGE
In the presence of:
Mr. MutuaFor Applicant
Ms OtienoFor the respondent
No AppearanceFor the objector