Kimeru Enterprises Limited v Co-operative Bank of Kenya (Civil Appeal E095 of 2025) [2026] KEHC 11572 (KLR) (24 July 2026) (Judgment)

Kimeru Enterprises Limited v Co-operative Bank of Kenya (Civil Appeal E095 of 2025) [2026] KEHC 11572 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KEHC 11572 (KLR) Republic of Kenya In the High Court at Thika Civil Appeal E095 of 2025 LM Wachira, J July 24, 2026 Between Kimeru Enterprises Limited Appellant and The Co-operative Bank of Kenya Respondent (Being an Appeal from the Ruling of Hon. Maureen Nabibya delivered on 20th March 2025 in Thika Magistrate Civil Case No. E525 of 2023) Judgment Introduction 1.The Respondent filed an application in Thika Magistrate Civil Case No. E525 of 2023 seeking to set aside the proclamation notice that intended to sell motor vehicle KDD 344K by public auction. The Respondent sought to have the sale cancelled on the basis that it was one of the owners of the said vehicle and therefore it had a valid claim over its ownership. 2.The Respondent produced as evidence the log book of the subject vehicle which showed joint ownership between it and the Defendant in the trial court, one Benard Murage Nyaga. 3.The court found merit in the application and was of the view that the Respondent had established a valid claim over the subject vehicle and set aside the proclamation notice and/or the notification of sale by public auction of the vehicle and cancelled any purported sale. 4.The Appellant being dissatisfied with the entire ruling of the trial Magistrate delivered on 20/3/2025 appealed to this court on the following grounds:-“ 1.That the Learned Trial Magistrate misapprehended and misguided herself on the interpretation of Order 22 Rule 51 (1) of the Civil Procedure Rules as amended in 2020 thus arriving at the wrong conclusion. 2.That the Learned Trial Magistrate erred in law and fact by failing to consider the particular circumstances surrounding the Application. 3.That the Learned Trial Magistrate erred in law and fact by failing to analyze all the relevant evidence availed by the Appellant in their response to the Application. 4.That the Learned Magistrate erred in law and fact by failing to appreciate the Appellant's contentions and arguments thus arriving at a wrong conclusion. 5.That the Learned Trial Magistrate erred in both law and fact in failing to consider the Appellant's Grounds of Opposition; Replying Affidavit and Submissions thus arriving to a wrong conclusion.” 5.Based on the foregoing grounds, the Appellant prayed to have its appeal allowed with costs and set aside the ruling of the trial court. Appellant’s Submissions 6.In support of the appeal, the Appellant filed submissions dated 24/2/2026 and submitted that Motor vehicle registration number KDD 344K was proclaimed on 26/8/2024, attached after the proclamation period lapsed, advertised for sale in the Standard Newspaper on 15/10/2024, and sold by public auction on 22/10/2024 to a bona fide purchaser for Kshs.1,000,000/=. 7.The Respondent thereafter filed an objector application dated 16th November 2024, twenty-six days after the sale, which the trial court allowed in a ruling delivered on 20th March 2025, prompting the present appeal. 8.The Appellant submitted that the appeal raised a single issue, namely whether the trial Magistrate misapprehended Order 22 Rule 51(1) of the Civil Procedure Rules. 9.It was argued that the provision permits objection proceedings only before paying out of the proceeds of sale and that, by the time the Respondent filed the objector application, the attached motor vehicle had already been lawfully sold and the proceeds paid out. Respondent’s Submissions 10.The Respondent filed written submissions dated 18/12/2025 and submitted that the appeal raised three issues for determination, namely: whether it had a legal and equitable interest in motor vehicle registration number KDD 344K; whether the proclamation, attachment and alleged sale of the motor vehicle were lawful; and who should bear the costs of the appeal. 11.On the first issue, the Respondent contended that it had established both a legal and equitable interest in the motor vehicle by producing the Security Agreement, Asset Finance Hire Purchase Agreement, Certificate of Registration, NTSA search and Notice of Registration of an Initial Notice. It maintained that the vehicle remained jointly registered in its name and that of the judgment debtor as security for the loan advanced, thereby making it a secured creditor whose interest was protected in law. 12.On the second issue, the Respondent submitted that the attachment and subsequent sale were unlawful. It argued that the original Proclamation Notice did not include the subject motor vehicle and that the proclamation relied upon by the Appellant had been altered to include it. It further contended that, as a registered joint owner and secured creditor, it was entitled to prior notice of the intended attachment but was never notified. The Respondent asserted that the attachment violated Rule 12 of the Auctioneers Rules, Order 22 Rule 57(2)(b) of the Civil Procedure Rules and Order 22 Rule 42 relating to attachment of jointly owned movable property. It further argued that its registered security interest under the Movable Property Security Rights Act rendered the vehicle unavailable for attachment and that only the judgment debtor's interest, if any, could be proceeded against by notice. 13.The Respondent therefore urged the court to find that it had proved its proprietary interest in the motor vehicle, that the attachment and sale were irregular, unlawful and incapable of conferring title upon the purchaser, and to uphold the ruling of 20/3/2025 with costs. Analysis and Determination 14.I have considered the Record of Appeal and submissions as filed by the parties. From the grounds of appeal, I have extracted the following issue for determination: Whether the trial court erred in allowing the Respondent’s application by misinterpreting Order 22 Rule 51(1) of the Civil Procedure Rules and thus arriving at the wrong conclusion. 15.The Respondent filed an application dated 16/11/2024 in Thika Magistrate Civil Case No. E525 of 2023 seeking to set aside the proclamation notice and/or the notification of sale by way of public auction of motor vehicle KDD 344K. The Respondent further sought an order to cancel any purported sale and transfer of the said vehicle and an order for the immediate release of the subject motor vehicle. The trial court found that the Respondent had a valid claim over the ownership of the vehicle and issued the orders as sought. 16.The Appellant has now appealed to this court asserting that the trial court erred in allowing the Respondent’s application by misinterpreting Order 22 Rule 51(1) of the Civil Procedure Rules. 17.Objection proceedings are provided for under Order 22, rule 51 of Civil Procedure Rules which states: -“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.” 18.In this case, the Respondent produced documentary evidence such as a Motor Vehicle Registration Certificate, Security Agreement and Asset Finance Hire Purchase Agreement between it and the Defendant and a Search Record dated 15/11/2024. These documents are all available in the Record of Appeal and they reveal that the Respondent was indeed a joint registered owner of the subject vehicle and therefore had a legal interest in it. 19.However, the record indicates that the subject vehicle was sold for Kshs.1,000,000/- on 22/10/2024 to Mr. Peter Ngotho. Proof of the sale is shown in the receipt of even date issued by the Auctioneer and produced on page 147 of the Record of Appeal. 20.In Zephir Holdings Limited v Mimosa Plantations Limited, Jeremiah Matagaro & Ezekiel Misango Mutisya [2014] KEHC 1981 (KLR), Gikonyo J stated:-“Even if the 1st Interested Party approached the court as an objector to attachment under Order 22 rule 51 of the Civil Procedure Rules, such objection proceedings are only possible before payment out of the proceeds of sale of such property. That position is not obtaining in this case. And, in a sense, therefore, the court will claim to be functus officio on the matter.” 21.In the instant Appeal, the Respondent’s objector application was filed on 16/11/2024, 26 days after the sale of the vehicle. Under Order 22 Rule 51 of the Civil Procedure Rules and buttressed by the authority above, objector proceedings ought to be filed before the sale of the attached asset. 22.My take is that the Respondent approached the trial court after the proclamation, advertisement, eventual sale of the vehicle and receipt of the proceeds thereto. The Objector Application was therefore overtaken by events under Order 22 Rule 51(1) of the Civil Procedure Rules, and the court was functus. 23.My finding therefore is that the trial court erred in making its orders in the ruling of 20/3/2025 while disregarding the evidence adduced before it, which showed that the vehicle had already been sold. 24.In the upshot the appeal is merited and it is allowed. The Orders of the trial court issued on 20/3/2024 are hereby set aside with costs to the Appellant. JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY AT NAIROBI THIS 24TH DAY OF JULY, 2026.…………………………..………………L. M. WACHIRAJUDGEIn the Presence of:Leadys – Court AssistantMr. Ogweno for the Appellant.Mr. Kichwen for the Respondent.