[2017] KEHC 4333 (KLR)
The court found that the Objector, Julius Owino Abiero, had established ownership of the attached motor vehicle KAS 133D by producing the log book and a current search certificate. There was no evidence to suggest that the judgment debtor was the beneficial owner. The court further held that the proclamation was...
Source-derived case information.
- Citation
- [2017] KEHC 4333 (KLR)
- Parties
- Applicant: Tobias O. See; Respondent: Maseno University & 3 Others; Applicant: Julius Owino Abiero; Applicant: Riley Falcon Security Services Ltd; Respondent: Oscar Otieno Odongo t/a Odongo Investment Auctioneers
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 7 of 2015
- Procedural Posture
- Constitutional Petition / Ruling on Objection to Execution
- Outcome
- Objection allowed; attachment set aside.
- Judges
- DAS Majanja
- Legal Topics
- Execution of Judgments, Objection Proceedings, Attachment of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tobias O. See
Applicant
Maseno University & 3 Others
Respondent
Julius Owino Abiero
Applicant
Riley Falcon Security Services Ltd
Applicant
Oscar Otieno Odongo t/a Odongo Investment Auctioneers
Respondent
Procedural Posture
Constitutional Petition / Ruling on Objection to Execution
Legal Issues
- 1 Whether the attached motor vehicle KAS 133D belongs to the Objector and not the judgment debtor.
- 2 Whether the proclamation of 'any other moveable(s)' without specific description is valid.
Ratio Decidendi
The court found that the Objector, Julius Owino Abiero, had established ownership of the attached motor vehicle KAS 133D by producing the log book and a current search certificate. There was no evidence to suggest that the judgment debtor was the beneficial owner. The court further held that the proclamation was defective as it failed to specify the items attached, which is a mandatory requirement under the Civil Procedure Rules. As a result, the attachment of the motor vehicle and any other unspecified movables was set aside, and the objection succeeded.
Court Disposition
Objection allowed; attachment set aside.
Orders
- Attachment of motor vehicle KAS 133D is raised.
- Attachment and sale flowing from the defective proclamation are null and void.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CONSTITUTIONAL PETITION NO. 7 OF 2015
TOBIAS O. SEE...........................................................................................................PETITIONER
VERSUS
MASENO UNIVERSITY & 3 OTHERS................................................................RESPONDENTS
AND
JULIUS OWINO ABIERO...................................................................................1ST OBJECTOR
RILEY FALCON SECURITY SERVICES LTD....................................................2ND OBJECTOR
VERSUS
OSCAR OTIENO ODONGO T/A ODONGO INVESTMENT AUCTIONEERS.....RESPONDENT
RULING
The application before me today is a notice of motion dated 27th June 2017 and it seeks an order that the motor vehicle attached, Mercedes Benz, KAS 133D be declared to be that of the Objector, Julius Owino Abiero. Since the application is an objection to execution, it is the duty of the person attached to show that the goods attached belong to him and not the judgment debtor.
The Objector has shown that motor vehicle KAS 133D belongs to him by producing a copy of the Registration Book (the log book). He was registered as at 23rd November 2010. Furthermore, a search certificate dated 27th June 2017 shows that he is still the registered owner. No evidence has been produced to show that the judgement debtor is the beneficial owner. Accordingly, the attachment of motor vehicle KAS 133D is raised.
The other limb of the application relates to a declaration that the attachment of, "any other moveable(s) found during service," as set out in the proclamation dated 13th December 2016 be declared null and void. It is my view that the proclamation must set out in sufficient details the description, condition and value of every item proclaimed and attached to enable the judgement debtor or any other person such as the Objector know what has been attached. In this respect, the proclamation is deficient to the extent that it does not give the description of items to be attached. No attachment and sale can flow from the defective proclamation.
In summary, the objection succeeds as motor vehicle NO. KAS 133D belongs to the Objector and there being no attachable assets set out in the proclamation, the attachment is raised.
The Decree Holder shall pay costs of Kshs. 40,000/= for the attachment.
D. S. MAJANJA
JUDGE
10. 07. 2017
COURT: Ruling read and delivered in open Court.
D. S. MAJANJA
JUDGE
10. 07. 2017