https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1870

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT** **AT NAIROBI** **ELRC CAUSE NO. 1745 OF 2011** ***(Before Hon. Lady Justice Hellen Wasilwa, J)*** **PETER ADINO MSULA…………………………………........CLAIMANT** **VS** **PWANI LOGISTICS KENYA LIMITED.................1STRESPONDENT** **GA INSURANCE LIMITED..................................2ND RESPONDENT** **AND** **SASHCO LOGISTICS LIMITED……………OBJECTOR/APPLICANT** **RULING** 1. The Objector/ Applicant filed a Notice of Motion application dated 2nd March 2026 seeking orders: - 2. *Spent* 3. *The execution of judgment in this matter through the proclaimed property in warrants of attachment and proclamations dated 26/02/2026 by Kilimanjaro Auctioneers be stayed pending the hearing of this application inter parties.* 4. *That the Decree Holder through his agents including Kilimanjaro Auctioneers or any other Auctioneers be precluded from proclaiming or having proclaimed, from attaching or selling the Objector’s goods/ motor vehicle in answer of the Decree of this Honourable Court.* 5. *That cost of this application be provided for.* 6. *Any other order this Honourable court would deem fit and just to grant.* 7. The Objector/Applicant further filed a Notice of Objection and Notice of Motion application dated 3rd March 2026 seeling orders: 8. *Spent* 9. *THAT there be an order staying execution of the judgment and the decree that was passed in this matter on 15/12/2022 pending inter parties hearing and determination these Objection Proceedings.* 10. *THAT this Honorable court be pleased to order that the proclamation and attachment of motor vehicles bearing registration mark KBN 618X and KBN 619X as described or set out in the Proclamation Notice dated 26/02/2026 that was issued by Kilimanjaro Auctioneers is null and void and the attachment be raised.* 11. *THAT this Honourable Court be pleased to issue a mandatory injunction barring the CLAIMANT either in person or through his agents, assigns and/or employees from proclaiming, attaching and/or engaging in any actions that may amount to attaching, advertising, auctioning, selling or offering for sale or in any other way transferring ownership of the objectors’ properties.* 12. *THAT the costs of this application be borne by the CLAIMANT* **Objector/Applicant’s Case** 1. The Objector avers that on 26th February 2026, Kilimanjaro Auctioneers served upon it a Proclamation Notice proclaiming its motor vehicles in purported execution of a judgment passed in favour of the Claimant. 2. It is the Objector's case that motor vehicle registration number KBN 617X is its property and that it is not a party to this suit. It purchased motor vehicles KBN 618X and KBN 619X on 10th January 2021 and was in the process of initiating the transfer of the same at the material time. 3. The Objector asserts that its rights of ownership over the proclaimed motor vehicles were subsisting at the time of the proclamation and issuance of the notification of sale. 4. The Objector contends that the Respondent has no interest and/or claim whatsoever over the attached motor vehicles, therefore, they cannot be attached in satisfaction of the decree issued against the Respondent. It is the Objector's case that the proclamation and attachment is consequently wrongful, unlawful, illegal, null and void. 5. The Objector avers that it is under imminent threat of execution and that the warrants of attachment and proclamation are about to be executed against its public transport truck, causing untold financial loss that may be irrecoverable. 6. It further avers that it attempted to engage the auctioneers to have the attachment lifted without recourse to court but that the auctioneers declined, necessitating the filing of this application. 7. It is the Objector's case that unless the orders sought are granted on an interim basis, the Claimant will proceed to execute against it, thereby driving it from the seat of justice without being heard, contrary to Article 50 of the Constitution and against the tenets of natural justice. 8. The Objector asserts that it stands to suffer irreparable loss and damage unless the orders sought are granted, and that the Claimant will suffer no prejudice if the application is allowed. **Claimant/Decree-Holder’s Case** 1. In opposition to the applications, the Claimant/Decree-Holder’s filed a replying affidavit dated 16th March 2026. 2. The Claimant/Decree-Holder avers that the Defendant was ordered to pay the decretal sum by this Honourable Court and has not made any payments to date. It contends that the procedure to enforce payment has been properly followed. 3. The Claimant/Decree-Holder states that on 19th February 2026, a search was carried out on the directors of Pwani Logistics (K) Ltd which revealed two directors by the name Abdul Mohamed and Hussein Mohamed Virjee and their secretary Mr. Joseph O. Ogola. 4. It further avers that the Defendant has another company operating as a pharmacy whose directors, as revealed by a search conducted on the same date, are Miriam Ali Saleh and Hussein Mohamed G. Virjee. 5. It is the Claimant/Decree-Holder's case that counsel on record nominated Kilimanjaro Auctioneers to execute the warrants against the Defendant and that an investigator spotted several vehicles at their yard bearing the names Monason Logistics, Globle Logistics and Shashco Logistics. The motor vehicles seen were KBN 618X, KBN 619X, KBN 290X and KBN 413K. It avers that the accident vehicle KBN 617X that was being driven by the decree holder has since been disposed of and was not found at the yard. 6. On the searches conducted on 25th February 2026, the Claimant/Decree-Holder states that motor vehicle KBN 617X is registered in the name of Mohammed Hassan Sheikh Noor, while motor vehicles KBN 619X and KBN 618X are both registered in the name of Pwani Logistics (K) Ltd. It further avers that a search on motor vehicle KBH 276X revealed ownership by Safari Ngamba Kalu. 7. The Claimant/Decree-Holder avers that a search on Sashco Logistics Limited shows its directors as Sameer Hussein Mohamed G. Virjee and Shabbir Hussein Mohamed G. Virjee, who are sons of Hussein Mohamed Virjee, a director in the Defendant company. It contends that the businesses are for family members of the Defendant and that Sashco Logistics Limited was created in 2020, yet this case was filed in court in 2011, the change being meant to deny the Claimant his benefits which the Defendant was aware of, having filed and signed the forms for compensation. 8. It is the Claimant/Decree-Holder's case that the sale agreement dated 10th January 2021 over motor vehicles KBN 619X and KBN 618X is not a true document, as the searches conducted on 25th February 2026 confirm that both vehicles belong to the Defendant Pwani Logistics (K) Ltd. 9. It contends that clause "C" of the sale agreement confirms that the buyer has not finalized or paid the full amount, which is why no transfer has been registered to date, and that the Defendant has not initiated the transfer as per clause "D" of the agreement since he has not been paid. The Claimant/Decree-Holder therefore asserts that the auctioneer's action to proclaim the vehicles is legal. 10. The Claimant/Decree-Holder further avers that there is no record of payment by Sashco Logistics Ltd to the Defendant in relation to the two agreements before the court. 11. It states that the Defendant has been served with all court documents at the last known address and has not responded to any court proceedings, and is not willing to compensate the Claimant whose life was destroyed while on duty. 12. The Claimant/Decree-Holder accordingly prays that the application be dismissed, the execution do proceed, the auctioneer be paid his costs for the legal proclamation carried out, and that the court orders the deposit of the full decretal sum together with hospital bills and auctioneer's costs in an interest-earning institution. **Applicant’s Submissions** 1. The Objector/Applicant submitted on five issues: whether the execution offends the doctrine of separate legal personality and constitutional protection of property; sustainability of the Objection Proceedings in Law; whether the evidential burden in objection proceedings has been discharged; no Application for Lifting corporate veil; and whether the attachment of motor vehicle registration number KBN 617X is lawful. 2. On the first issue, the Objector submitted that the attempt to levy execution against it constitutes a direct assault on the doctrine of separate corporate personality as entrenched since the seminal decision in ***Salomon v Salomon & Co Ltd [1897] AC 22***, which recognized that a duly incorporated company is a distinct juristic person, separate from its members, directors, or affiliated entities. Reliance was placed on [***Kudheiha Workers v Operations Director Mr Patrick Munene White Rhino Hotel [2018] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/718/eng%402018-10-31), where the Court reaffirmed that an individual director or manager is not interchangeable with the corporate entity, and that any claim or execution must be directed against the correct legal person. 3. It is the Objector's submission that the decree was issued against Pwani Logistics Kenya Ltd, yet execution has been wrongfully extended to the Objector, Sashco Logistics Ltd, a separate and duly incorporated company, and that to conflate the two is to collapse the corporate veil without legal justification in violation of the Companies Act. 4. The Objector further submitted that Article 40 of the Constitution of Kenya protects every person's right to acquire, own, and enjoy property without arbitrary deprivation, and that execution against a non-party to the decree violates this constitutional guarantee and undermines the foundations of due process and the rule of law. 5. On the second issue, the Objector submitted that it has adduced cogent and credible evidence demonstrating that it is a distinct juristic person separate from the 1st Defendant, and that the proclaimed property does not belong to the judgment debtor. It argued that execution against a stranger to the decree is a jurisdictional aberration which this Court cannot sanction. It relied on [***Football Kenya Federation v Kenyan Premier League Limited & 4 others [2015] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2015/6221/eng%402015-03-16), where the Court of Appeal affirmed that defects in party description and representation are not mere technical lapses but matters that strike at the root of jurisdiction, and that an order enforced against a party not properly before the Court is a *nullity ab initio*. 6. The Objector further submitted that the decree was issued against a sole proprietorship yet execution has been levied against a duly incorporated company that was never impleaded. It argued that once it is shown that the attached assets belong to a third party who was never a judgment debtor, this Court has a constitutional duty under Article 40 of the Constitution to intervene and restrain the unlawful execution. It relied on [***Agricultural Finance Corporation v Lengetia Limited & Jack Mwangi [1985] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/1985/58/eng%401985-05-30)where the Court of Appeal held that contractual and legal obligations are confined strictly to the parties bound by them and cannot extend to strangers, and on [***Patrick Kingori Warugongo v James Nderitu & another [2014] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2014/5784/eng%402014-04-04) where the Court held that once an Objector establishes ownership of the attached property, the evidential burden shifts squarely to the Decree Holder to disprove that ownership. 7. On the third issue, the Objector submitted that under Order 22 Rule 51 of the Civil Procedure Rules, the Objector bears the initial burden of establishing a prima facie proprietary interest in the attached property, upon which the evidential burden shifts to the Decree Holder to rebut that ownership. It support thereof, it cited [***Arun C. Sharma v Ashana Raikundalia T/A A. Raikundalia & Co. Advocates & 4 others [2014] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2014/1412/eng%402014-11-26). 8. The Objector submitted that it has produced copies of sale agreements demonstrating ownership of the proclaimed vehicles, and that these materials are unimpeachable unless displaced by stronger and contrary proof. It argued that the Decree Holder has tendered no credible evidence to dislodge the Objector's documentary case, relying instead on conjecture and misplaced assertions of commonality between distinct legal entities. 9. It was submitted that the Objector has fully discharged its evidential burden while the Decree Holder has wholly failed to meet its corresponding duty, and that on this score alone the objection proceedings must succeed. 10. On the fourth issue, the Objector submitted that the attempt to hold it liable for the acts or liabilities of a separate company is an implied invitation to pierce the corporate veil, yet no such application has been brought before this Court. 11. It argued that the veil of incorporation cannot be lifted by inference or convenience but only upon clear pleadings, credible evidence of fraud or sham, and express judicial determination, and that in the absence of such an application this Court cannot collapse the Objector's distinct corporate identity nor impute liability to it on the mere basis of shared directorship. 12. On the final issue, the Objector submitted that the Decree Holder conducted a search prior to proclamation and confirmed that the motor vehicles belong to the Objector, yet proceeded with attachment despite that knowledge. It cited [***Precast Portal Structures v Kenya Pencil Company Ltd & 2 others [1993] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kehc/1993/100/eng%401993-12-01) . **Claimant/Decree-Holder’s Submissions** 1. The Claimant/Decree-Holder submitted on three issues: whether the Proclamation is legal; whether the motor vehicles belong to the 1st Respondent; whether the objectors have satisfied the court on ownership of the motor vehicle in issue. 2. On the first issue, the Claimant submitted that the execution by Kilimanjaro Auctioneers is legal and valid. It submitted that the Auctioneers Act allows an auctioneer to proclaim moveable goods upon issuance of valid warrants, and that the process has been followed as required by law. In the instant application, the auctioneer received instructions to execute the warrants after judgment was delivered, a decree was issued, and warrants were duly obtained from the Court for execution. 3. On the second issue, the Claimant/Decree Holder submitted that an official search conducted on 25th February 2026 on motor vehicles KBN 618X and KBN 619X revealed that the registered owners are the 1st Respondent. It argued that the Objector has produced two sale agreements dated 2021 and 2022, after judgment had already been delivered in this matter, and that there has been no transfer of the motor vehicles to the alleged company despite a period of five years having lapsed. 4. It was further submitted that the Objector has not disclosed to this Court that its directors are related by blood to the directors of the 1st Respondent, rendering its claim to ownership questionable. The Claimant/Decree Holder accordingly submitted that motor vehicles KBN 618X and KBN 619X belong to the 1st Respondent and should not be released to the Objector. 5. On the final issue, it was submitted that the Objector has not satisfied this Court that it is the owner of motor vehicles KBN 618X and KBN 619X. The Claimant/Decree Holder argued that sale agreements dated 2021 and 2022 cannot be conclusive evidence of ownership, particularly where the Objector was not in possession of the vehicles, which were found at the yard of the 1st Respondent. 6. It was submitted that there is nothing from the 1st Respondent to support the contention that the particular vehicles do not belong to it as per the sale agreement. 7. The Claimant/Decree Holder submitted that the records at the National Transport and Safety Authority clearly show that the two vehicles belong to the 1st Respondent, thus, this constitutes *prima facie* evidence of ownership unless proved otherwise. It relied on [***Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2015/616/eng%402015-06-19), where the Court dismissed the appeal and retained the lower court's judgment on the basis that the appellant had not proved a legal right over the motor vehicle in question. It further relied on [***Damacline Kwamboka Kunga v Caroline Bosibori Oncheka & another (Suing as the legal representative of the Estate of Henry Akara Onsomu) & another; Hezron Onsongo t/a Hegeons Auctioneers & another (Interested Parties) [2020] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/4245/eng%402020-07-08), where the Court held that the objector had no legal right over the attached property. 8. It was the Claimant/Decree Holder's submission that the vehicles are properly proclaimed and attached, and are property of this Honourable Court by virtue of the warrants issued, and that their release can only be effected upon the Court's consideration of the facts and evidence produced by the parties. 9. It urged the Court to note the sequence of events from the time the Claimant was injured while on duty, the period it has taken the 1st Respondent to pay the assessed amount, and that the Hospital Bill at Kijabe Hospital remains unpaid and continues to attract interest to date. 10. I have examined all the averments and submissions of the parties herein. The objector has filed this application averring that the proclaimed motor vehicle KBN 618X and KBN 619X belong to him and cannot be used to levy execution against him in answer to the decree of this court. 11. In determining whether the application sought can be granted or not this court only needs to ascertain ownership of the said motor vehicles. The applicant have averred they are owners of the said motor vehicles having bought the same from the respondents JDS. The applicants exhibited motor vehicle sale agreements as evidence of their owning the two motor vehicles. The motor vehicle sale agreements are dated 10th January 2021. 12. The respondent decree holder on their part opposed the application and exhibited the searches conducted on 25th February 2026 which show that motor vehicle KBN 617X is registered in the name of Mohammed Hassan Sheikh Noor while motor vehicle registration no KBN 619X and KBN 618X are both registered in the name of Pwani Logistics (K) Ltd the respondents herein. Motor vehicle registration no KBN is owned by Safari Ngamba Kalu. 13. From this analysis, it is indeed true that motor vehicles KBN 617X and motor vehicle KBH 276X should not be attached and any attachment in realization of the debt cannot hold. This is basically because motor vehicle KBN 617X is registered in the name of the objector. As concerns motor vehicle KBH 276X there are no objection proceedings by the registered owner. 14. In the circumstances, I allow the application by the objector against sale of KBN 617X. As concerns KBH 276X there being no objection, proceedings against their attachment, the objection cannot lie. 15. As relates to KBN 618X and KBN 619X the objector avers it belongs to him but the sale agreement cannot be used to authenticate ownership. The only valid and superior evidence of ownership is the certified record from the registrar of motor vehicles which shows that the motor vehicles belong to the judgment debtor. Objection proceedings as against the attachment of the 2 (two) motor vehicles cannot hold and is dismissed. 16. Having considered the application in its totality, I order that each party meets its own costs. **Dated, Signed and Delivered Virtually at Nairobi this 26th Day of June, 2026.** **HELLEN WASILWA** **JUDGE**