[2017] KEHC 8937 (KLR)
The court found that the Objector, Mantemo Royal Services Limited, had established ownership of the attached goods (excluding the motor vehicle) through uncontroverted evidence, including its certificate of incorporation and receipts for the purchase of the office chairs and computer. The Decree Holder failed to...
Source-derived case information.
- Citation
- [2017] KEHC 8937 (KLR)
- Parties
- Decree Holder: Mercy Njoki Kamau; Judgment Debtor: Tiny M Royal Company; Objector Applicant: Mantemo Royal Services Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 198 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Objector Application
- Outcome
- application allowed in part
- Judges
- BT Jaden
- Legal Topics
- Objector Proceedings, Execution of Decree, Attachment of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mercy Njoki Kamau
Decree Holder
Tiny M Royal Company
Judgment Debtor
Mantemo Royal Services Limited
Objector Applicant
Procedural Posture
Civil Appeal / Ruling on Objector Application
Legal Issues
- 1 Whether the goods proclaimed by Galaxy Auctioneers belong to the Objector or the Judgment Debtor.
- 2 Whether the Objector is a separate legal entity from the Judgment Debtor and entitled to protection from execution against its property.
- 3 Whether the Decree Holder has provided sufficient evidence to pierce the corporate veil of the Objector.
Ratio Decidendi
The court found that the Objector, Mantemo Royal Services Limited, had established ownership of the attached goods (excluding the motor vehicle) through uncontroverted evidence, including its certificate of incorporation and receipts for the purchase of the office chairs and computer. The Decree Holder failed to provide any evidence to support the claim that the Objector and Judgment Debtor were the same entity or that the Objector was being used as a front to evade the decree. As such, the Objector, being a separate legal entity, was entitled to protection from execution against its property for a decree it was not liable for. The application was allowed in respect of the goods except...
Court Disposition
application allowed in part
Orders
- Declaration that the goods proclaimed by Galaxy Auctioneers on 10th October 2016, except for motor vehicle registration No. KAY 723B, belong to the Objector and not the Judgment Debtor.
- Order lifting the proclamation of the Objector's goods, except for the motor vehicle.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL APPEAL NO. 198 OF 2012
MERCY NJOKI KAMAU..........................................................DECREE HOLDER
VERSUS
TINY M ROYAL COMPANY................................................JUDGMENT DEBTOR
MANTEMO ROYAL SERVICES LIMITED...................OBJECTOR/APPLICANT
RULING
1. The application dated 17th October, 2016 seeks the following orders:-
1. This Honourable Court be pleased to issue an order declaring that the goods proclaimed by Galaxy Auctioneers on the 10th October 2016 belong to the Objector Mantemo Royal Services Limited and not the Judgment Debtor.
2. The Honourable Court be pleased to issue an order lifting/raising the proclamation of the Objector’s goods.
3. That the costs of this application be borne by the Appellant/Respondent.
2. The Objector’s case is that on 10th October 2016, Mrs. Galaxy Auctioneer proclaimed the Objector’s goods. The proclamation of attachment of moveable property reflects the said goods as one motor vehicle registration No. KAY 723B Nissan Van, office furniture and one computer. According to the Objector, the attached goods except the motor vehicle belong to the Objector herein. The Objector’s contention is that it is not a party to the suit herein and did not participate in the same. The Objector exhibited its certificate of incorporation and stated that it is a stranger to the Judgment Debtor.
3. In opposition to the application, the Decree Holder filed the grounds of opposition dated 28th November 2016. The said grounds state as follows:-
1. THAT the directors of the Objector and those of the Defendant are just but one and the same.
2. THAT the address of service of the Judgment Debtor as well as the Objector are just one and the same
3. THAT as such Judgment Debtor and Decree Holder are just but one and the same
4. THAT the Judgment Debtor is using the Objector as a front to evade setting this courts decree.
5. THAT the Defendant is truly indebted to the Plaintiff.
6. THAT the Plaintiff will suffer grave prejudiced if stopped from enjoying the fruits of her judgment.
4. The application was argued by way of written submission which I have considered.
5. Although the Decree Holder has stated that the Judgment Debtor is using the Objector as a front to evade the settlement of the decree herein, there is no evidence in support of the said assertion. The Decree Holder has not filed any affidavit to controvert the averments made by the Objector. There is therefore no basis upon which the Decree Holder can state that the directors of the Objector are the same as the Judgment Debtor’s. The certificate of incorporation of Mantemo Royal Services Ltd, the Objector herein has been exhibited herein. Going by the said certificate of incorporation, the Objector is a separate and distinct legal entity from the Judgment Debtor.
6. The Objector has also exhibited receipts for the purchase of the office chairs and the computer. This evidence remains uncontroverted by any other evidence.
7. With the foregoing, this court is satisfied that the Objector has established ownership of the attached goods. Consequently, I allow the application as prayed except in respect of motor vehicle registration No. KAY 723B. Costs to the Objector.
Date, signed and delivered at Nairobi this 22nd day of June, 2017
B. THURANIRA JADEN
JUDGE