https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4066

Matumbo Company Ltd v Wahu & 3 others (Environment and Land Case 25 of 2022) [2026] KEELC 4066 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KEELC 4066 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case 25 of 2022 TW Murigi, J June 26, 2026 Between Matumbo Company Limited Plaintiff and Mary Wahu 1st Defendant Benard Kanyi 2nd Defendant Veronica Nyambura 3rd Defendant and Sannex Enterprises Auctioneers Interested Party Ruling 1.By a Notice of Motion dated 13th June 2025, brought under Order 22 Rules 51 and 52 of the Civil Procedure Rules and Sections 1A, 1B, 3A, and 63 of the Civil Procedure Act, the Objector/Applicant seeks the following orders:a.Spent.b.Spent.c.That the Honourable Court does issue a declaration that the proclamation dated 21st May 2025 and proclaimed on 5th June 2025 by the auctioneer Sannex Enterprise Auctioneer was unlawful.d.That the Honourable Court be pleased to issue a declaration that the items as per the proclamation notice dated 21st May 2025 and proclaimed on 5th June 2025 by the Agents of the 1st Defendant/Decree Holder belong to the objector.e.That the said properties or items proclaimed or attached on 5th June 2025 be released to the owner forthwith.f.That the Honourable Court be pleased to make a finding in the realm of the Defendant/Judgment Debtor has no legal or equitable interest in the items as per the proclamation notice dated 21st May 2025 and proclaimed on 5th June 2025.g.That the costs of this application be provided for. 2.The application is based on the grounds appearing on its face together with the supporting affidavit of the Objector, Benard Kanyi, sworn on even date. The Applicant’s Case 3.The Applicant averred that he is a third party, as he is not a director of the said company. He stated that, on 5th June 2025, pursuant to a Proclamation Notice dated 21st May 2025, Sannex Enterprises Auctioneers, acting under the instructions of the 1st Defendant/Decree Holder, visited the premises of Pabed Matumbo Cafe and proclaimed the following items: two tables; twelve metal chairs; two kitchen tables; one jiko; one 13 kg gas cylinder; and any other attachable items. 4.He averred that he operates Pabed Matumbo Cafe from the premises in question, and that the proclaimed items are tools of trade belonging to him personally and do not form part of the assets of Matumbo Company Limited. 5.He stated that the attachment arises from a Decree and an order for the taxation of a bill of costs issued in ELC No. 25 of 2022 against Matumbo Company Limited, in favour of the 1st Defendant/Decree Holder, for the sum of Kshs. 6,325,898/=. He argued that, as a third party to those proceedings, neither he nor his property was subject to execution under the said Decree. 6.He further asserted that he had served a formal Objection Notice on the Decree Holder and the auctioneers. He argued that the proclamation of his tools of trade was unlawful and that auctioneers are legally barred from attaching them. He maintained that Sannex Enterprises Auctioneers had no authority under the Warrant of Attachment to proceed against a person not named therein. He stated that he would suffer irreparable loss and damage if the auctioneers continued to attach additional items to his business premises or household and sell the proclaimed property. 7.He relied on Order 22, Rules 51 and 52 of the Civil Procedure Rules as the basis for his right to raise the objection, and cited Tawakal Airbus Limited v Irene Muthoni Njirati & Another [2020] eKLR, Michira Messah and Company Advocates v Katana Kalume Ndurya; Kalume Kenga Katana (Objector) [2021] eKLR, and Chai Trading Co. Limited v Muli Mwanzia & 2 Others [2019] eKLR in support of the application. The 1St Defendant’s Case 8.The 1st Defendant filed Grounds of Opposition dated 22nd July 2025 and a Replying Affidavit dated 28th July 2025 in opposition to the application. 9.She asserts that the application is fatally defective, overtaken by events, and dead on arrival, as the proclaimed goods were sold on 20th June 2025, prior to the hearing of the application. 10.She averred that no order for a stay of execution could be issued in the matter, as the Court of Appeal had declined to grant such a stay on 4th December 2025 in COACAPPL. No. E414 of 2024. 11.She argued that the Objector has acted dishonestly and mischievously throughout these proceedings, as shown by various affidavits he has filed, including the verifying affidavit attached to the plaint. 12.She further contended that the Objector has failed to produce any ownership documents in respect of the attached items. She argued that the Single Business Permit relied upon by the Objector discloses a party who is a stranger to these objection proceedings. She asserted that she is the legitimate owner of the premises from which the goods were taken. She also argued that the Objector was obliged to demonstrate the existence of a legal tenancy between himself and the 1st Defendant in respect of those premises, failing which the application is vexatious and an abuse of the process of this court. 13.She contended that the prayers sought in the application are intended to unlawfully interfere with and set aside the determinations made in COACAPPL No. E414 of 2024 and BPRT No. E359 of 2025, which included orders for execution and recovery of possession against the Objector. 14.She argued that the Objector is guilty of material non-disclosure, having misled this court in a manner that is in gross conflict with its previous orders and with the current status of various other proceedings which have since been dismissed, in a deliberate attempt to circumvent the judgment and decree herein. 15.The deponent stated that Benedict Odhiambo Oloo & Co. Advocates represent both the Objector and the Respondent in the same application. She argued this creates a conflict that constitutes an abuse of the court process. She further claimed that the court lacks jurisdiction to hear the case under these circumstances and urged that the application be dismissed with costs. 16.She argued that the Objector's conduct across two superior courts, the Chief Magistrate's Court, and the Business Premises Tribunal demonstrates a sustained pattern of illegal trespass and wanton disregard of express court orders, and that the present application constitutes a further attempt to perpetuate that conduct through abuse of the judicial process. Analysis And Determination 17.Having considered the application and the responses by the 1st Respondent, the only issue for determination is whether the applicant is entitled to the orders sought. 18.Order 22 Rule 51(1) of the Civil Procedure Rules provides that:51.Objection to attachment [Order 22, rule 51](1)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. 19.It is trite law that the burden of proof in objection proceedings rests with the objector. In Arun v C. Sharma Astana Raikundaha t/a Raikundaha & Co. Advocates & 4 Others [2014]eKLR the Court held that;“The objector bears the burden of proving that he is entitled to or has legal or equitable interest on the whole or part of the attached property. The key words are; entitled to or to have a legal or equitable interest in the whole or part of the property. Has the objector proved it is entitled to or to have a legal or equitable interest in the whole or part of any property attached in execution of a decree?” 20.In Precast Portal Structures v Kenya Pencil Company Ltd & 2 others [1993] KEHC 100 (KLR), the Court elaborated the conditions under which a release from attachment may be ordered as follows:“The burden is on the objector to prove and establish his right to have the attached property released from the attachment. On the evidential material before the Court, a release from attachment may be made if the Court is satisfied:(1)that the property was not, when attached, held by the judgment-debtor for himself, or by some other person in trust for the judgment-debtor; or(2)that the objector holds that property on his own account.But where the Court is satisfied that the property was, at the time of attachment, held by the judgment – debtor as his own and not on account of any other person, or that it was held by some other person in trust for the judgment-debtor, or that ownership has changed whereby the judgment – debtor has been divested of the property in order to evade execution or the change is tainted with fraud, the Court shall dismiss the objection .” 21.It is not in dispute that judgment in this matter was entered on 24th June 2024, dismissing the Plaintiff's case with costs to the 1st Defendant. A ruling by the Taxing Master dated 18th March 2025 assessed party and party costs at Kshs. 6,322,898/=. That ruling has not been challenged and therefore remains in force. The proclamation notice dated 21st May 2025 was issued to enforce the resulting certificate of costs. The Decree Holder was therefore entitled to proceed with execution. 22.The Objector based his claim on the assertion that he is a third party to these proceedings, not being a director of the Plaintiff company, and that the Plaintiff is a separate corporate entity from himself. He has produced a Single Business Permit issued by Nairobi City County for Pabed Matumbo Café, operated from the suit premises, LR No. 209/138/164, to support his claim that the proclaimed items are his tools of trade. 23.This Court, however, is not persuaded that the Objector has discharged the burden placed upon him. The Single Business Permit confirms the existence of Pabed Matumbo Café. The Objector, however, fails to discharge the burden of establishing his ownership of the proclaimed items, nor does he demonstrate that those items belonged to the café business rather than to the Plaintiff. The Objector has not produced ownership documents, receipts, or any other evidence linking the specific items proclaimed to himself personally or to his claimed business. 24.The matter is further complicated by the Objector's own testimony, as summarised in the judgment of this court, where he testified that he was the administrator of Douglas Mwangi, who was one of the directors of the Plaintiff. That testimony, offered by the Objector himself, suggests a degree of connection between the Objector and the Plaintiff company that is difficult to reconcile with the sharp separation he now urges upon this court. 25.The doctrine of separate corporate personality is well established. The Court of Appeal in Riccatti Business College of East Africa Limited v Kyanzavi Farmers Company Limited [2016] eKLR reaffirmed the fundamental principle that a company, as a legal entity, has a separate and independent legal personality, distinct from its shareholders, directors, and agents, unless there are reasons to lift the corporate veil. The corporate veil may only be pierced in special circumstances, such as improper conduct, fraud, or where the company is a sham or acts as an agent for its shareholders. 26.In the matter at hand, the Objector's reliance on separate legal personality alone is not enough to prove that the proclaimed items belonged to him rather than the Plaintiff. 27.Regarding the further submission by the 1st Defendant, the Court clarifies that no order for a stay of execution could be issued due to the ruling of the Court of Appeal in COACAPPL No. E414 of 2024; that order was not a decision on the merits and merely records that leave was granted to the Plaintiff to withdraw its application for a stay of execution. Concerning the ruling of the Business Premises and Rent Tribunal in BPRT/E395/2025, the Tribunal held that the 1st Defendant was entitled to recover possession of the suit premises immediately. 28.Neither of these decisions constitutes a judicial finding that bars this court's jurisdiction under Order 22, Rules 51 and 52, and this court has therefore proceeded to consider the application on its merits. 29.Based on the material before this court, it finds that the Objector has failed to discharge the burden of proving a legal or equitable interest in the proclaimed items and has, in any case, been overtaken by events. The application is therefore without merit. 30.The Notice of Motion dated 13th June 2025 is hereby dismissed with costs to the 1st Defendant. RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 26TH DAY OF JUNE 2026.…………………………………….HON. T. MURIGIJUDGEIn The Presence Of:Kiprono holding brief for Oloo for the Plaintiff/RespondentKimuyu holding brief for Njugi for the 1st RespondentVena - Court assistant