https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12667

Jilao Company Ltd v Fahari Trading Ltd & 2 others (Civil Case 160 of 2015) [2026] KEHC 12667 (KLR) (6 August 2026) (Ruling) Neutral citation: [2026] KEHC 12667 (KLR) Republic of Kenya In the High Court at Mombasa Civil Case 160 of 2015 J Ngaah, J August 6, 2026 Between Jilao Company Limited Plaintiff and Fahari Trading Limited 1st Defendant Maersk Line (K) Ltd 2nd Defendant and Garad Siyad Shamsa Objector Ruling 1.This ruling determines the notice of objection dated 4th July 2025 and the application filed together with it, by which the objector, Garad Siyad Shamsa, objects to the attachment of motor vehicle registration number KBH 414R and prays that the attachment be lifted and the vehicle released to her. The objection is brought under Order 22 rule 51 of the Civil Procedure Rules and is supported by the objector’s affidavit sworn on 4th July 2025. 2.The decree in execution of which the attachment was levied is that of 15th February 2024. Upon the dismissal of the plaintiff’s suit and the success of the 1st defendant’s counterclaim, the plaintiff, Jilao Company Limited, became the judgment debtor and the 1st defendant, Fahari Trading Limited, the decree holder, in the sum of USD 268,269.30. In execution of that decree, the -holder took out warrants of attachment of the movable and immovable property of the judgment debtor, and on or about 30th June 2025 the auctioneers, Regent Auctioneers, proclaimed and attached the said motor vehicle registration number KBH 414R. 3.A short procedural history is necessary. The notice of objection was filed on 4th July 2025 under a certificate of urgency of even date. When the matter first came before me, I observed, by my ruling of 8th July 2025, that although there was a certificate of urgency referring to an application, no application appeared to accompany the notice of objection; and, noting that under Order 22 rule 51(2) a notice of objection must be accompanied by an application supported by an affidavit setting out the nature of the claim, I found that, in the absence of the application, there was nothing before the court for disposal. It has since been confirmed, on a further perusal of the record, that the application, the notice of motion supported by the affidavit of the objector, was in fact filed together with the notice of objection. The premise of that earlier ruling was therefore mistaken. The objection, accompanied by the requisite application and affidavit, is properly before the court and now falls to be determined on its merits. The objector’s case 4.The objector’s case, as deposed in her affidavit, is as follows. She is the wife of one Abdullahi Ahmed Haji and holds a power of attorney donated to her by him, a copy of which is exhibited to her affidavit. Her husband, she deposes, is the registered owner of motor vehicle registration number KBH 414R, a Toyota station wagon; the vehicle was purchased by him and registered in his name, as shown by the copy of records of the National Transport and Safety Authority exhibited to her affidavit and which shows that Abdullahi Ahmed Haji as the vehicle’s registered owner. 5.She deposes further that, although her husband is a director of the plaintiff company, the vehicle does not belong to the company but is his private asset; that the vehicle was attached on or about 30th June 2025 pursuant to warrants of attachment issued against the plaintiff company; that the fact that she occasionally drives the vehicle does not alter its ownership; that she is not a party to the suit; and that she learnt of the attachment on 30th June 2025 and filed the objection without undue delay. She prays that the attachment be lifted and the vehicle released. The decree holder’s response 6.The 1st defendant/decree holder opposes the objection through the replying affidavit of Jawaid Ali, a director and shareholder of the 1st defendant, sworn on 1st October 2025. The grounds of opposition are, in substance, four. First, that the objection is incompetent because the firm on record for the objector, M.V. Mwangi Associates, purported to come on the record after judgment without the leave of the court and without the consent of the advocates previously on record, contrary to Order 9 rule 9 of the Civil Procedure Rules. Secondly, that the objection is res judicata, a similar application dated 4th July 2025 having, it is said, been disposed of by the ruling of 8th July 2025, which ruling has not been set aside. Thirdly, that the objector is an imposter with no authority from the plaintiff company to swear an affidavit on its behalf. Fourthly, that the plaintiff cannot be the objector in its own suit. The decree holder prays that the objection be dismissed with costs. Issues for determination 7.I have considered the notice of objection, the application and the supporting affidavit, the replying affidavit and the rival arguments. Two questions arise. The first is whether the objection is competent and properly before the court, having regard to the threshold objections taken by the decree holder. The second, if the first is answered in the affirmative, is whether the objector has established that the attached vehicle is not liable to attachment because it is not the property of the judgment debtor. The law 8.Objection proceedings of this nature are governed by Order 22 rule 51 of the Civil Procedure Rules, which provides:(1)Any person claiming to be entitled to or to have a legal or equitable interest in the whole of or part of any property attached in execution of a decree 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 the parties and to the decree-holder of his objection to the attachment of such property.(2)Such notice shall be accompanied by an application supported by affidavit and shall set out in brief the nature of the claim which such objector or person makes to the whole or portion of the property attached. 9.The purpose of the rule is to enable a person who claims to be entitled to, or to have a legal or equitable interest in, property attached in execution of a decree against another to have the attachment investigated and, if the claim is made out, the property released. The burden lies on the objector to establish, by evidence, the claim asserted. And it is elementary that execution may be levied only against the property of the judgment debtor, and not against the property of a stranger to the decree. The threshold objections 10.I take first the objection founded on Order 9 rule 9. That rule regulates the change of an advocate, or the assumption of conduct of a matter by an advocate, by a party to the suit after judgment, and requires an order of the court or the consent of the outgoing advocate. It has no application here. The objector is not a party to the suit. She is a stranger to it who has commenced objection proceedings in her own right, and she is entitled to instruct an advocate of her choice. M.V. Mwangi Associates are on the record for the objector, not for the plaintiff. The objection is not rendered incompetent on that account. 11.As to res judicata, section 7 of the Civil Procedure Act bars the trial of a matter directly and substantially in issue in a former proceeding which has been heard and finally determined by a competent court between the same parties. The ruling of 8th July 2025 determined nothing of the sort. It did not decide the objector’s claim to the vehicle; it went no further than to find that, as the application appeared not to have been filed, there was nothing before the court for disposal. That finding, as I have already observed, proceeded on a mistaken premise, the application having in fact been filed together with the notice of objection. There being no determination on the merits of the objector’s claim, the doctrine of res judicata is not engaged, and the objection is not barred. 12.The two remaining objections may be taken together, for they share a common misconception. The decree holder contends that the objector is an imposter with no authority to swear an affidavit on behalf of the plaintiff company, and that the plaintiff cannot be the objector in its own suit. But the objector does not purport to act for, or on behalf of, the plaintiff company. She objects as the attorney of Abdullahi Ahmed Haji, the registered owner of the vehicle, under the power of attorney. Abdullahi Ahmed Haji, though a director of the plaintiff company, is in law a person distinct from the company. The objection is therefore not an objection by the plaintiff; it is a third-party objection prosecuted, through his attorney, on behalf of the person who asserts ownership of the attached vehicle. The objections founded on want of authority from the plaintiff, and on the plaintiff objecting in its own suit, accordingly fall away. I am satisfied that the objection is competent and properly before the court. Whether the vehicle is liable to attachment 13.That brings me to the substance of the matter. The decree in execution of which the attachment issued is a decree against the plaintiff, Jilao Company Limited. It is a cardinal principle of company law that a limited liability company is a legal person distinct from its members and directors, and that the property of a director is not the property of the company. It follows that the personal property of a director is not liable to attachment and sale in satisfaction of a decree against the company; execution against the company may be levied only against the company’s own property. 14.The evidence before me is that the attached vehicle, registration number KBH 414R, is registered in the name of Abdullahi Ahmed Haji and not in the name of the judgment debtor. The copy of records of the National Transport and Safety Authority exhibited to the objector’s affidavit records him as the registered owner, the vehicle having been registered in his name long before both the decree of 15th February 2024 and the attachment of 30th June 2025. While a certificate or record of registration is not conclusive proof of ownership, it is prima facie evidence of it, and the registered owner is taken to be the owner unless and until the contrary is shown. The burden of displacing that prima facie position lay on the decree holder. Yet the decree holder has placed no material whatever before the court to show that the vehicle is in truth the property of the judgment debtor company. Its replying affidavit is directed entirely to the competence of the objection and says nothing to controvert the objector’s evidence of ownership. 15.I have not lost sight of the decree holder’s underlying suspicion that the objection is a device by which the judgment debtor seeks, through its director and his wife, to place the vehicle beyond the reach of execution. But suspicion is not evidence. The registration of the vehicle in the director’s name long predates the decree and the attachment and cannot be characterised as a recent contrivance; and the power of attorney, whatever its date, is no more than authority to act and is not the source of ownership. More fundamentally, even taking the decree holder’s own characterisation at its highest, that the vehicle belongs to the director personally, the result is the same, for the personal property of a director is not liable to attachment for a decree against his company. On no view of the evidence is the vehicle shown to be the property of the judgment debtor. 16.It follows that the objector, as attorney of the registered owner, has established that the attached vehicle is not liable to attachment in execution of the decree against the judgment debtor. The objection is merited and must succeed. Disposition 17.In the result, I make the following orders:(a)the notice of objection dated 4th July 2025 is allowed;(b)the attachment levied over motor vehicle registration number KBH 414R is lifted, and the said motor vehicle shall be released from attachment forthwith to the objector on behalf of the registered owner;(c)the 1st defendant/decree holder shall bear the costs of the objection.(d)If necessary, leave to appeal is granted to any party that may wish to appeal against this decision. 18.It is so ordered. SIGNED, DATED AND PUBLISHED ON THE CTS ON 6 AUGUST 2026NGAAH JAIRUSJUDGE