[2022] KEHC 15472 (KLR)

Ngaruyia (Suing as the Administrator of the Estate of the deceased Samuel Mbugua Mungai) v Kassam Hauliers Ltd; Click Hauliers (Objector) (Civil Suit 009 of 2019) [2022] KEHC 15472 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 15472 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Suit 009 of 2019

GV Odunga, J

October 6, 2022

Between

Juliah Wambui Ngaruyia

Decree holder

Suing as the Administrator of the Estate of the deceased Samuel Mbugua Mungai

and

Kassam Hauliers Ltd

Judgment debtor

and

Click Hauliers

Objector

Ruling

1. By chamber summons dated November 16, 2021, expressed to be brought under order 49 rule 7(2) and (3) of the Civil Procedure Rules and all enabling provisions of the law, the decree/holder applicant herein seeks an order setting aside the decision of the learned deputy registrar delivered on November 11, 2021 on the 1st respondent’s objection proceedings dated August 10, 2021. Accordingly, he seeks that this appeal by way of reference be allowed and that the court dismisses the 1st respondent’s objection proceedings with costs to the decree holder/applicant. It was further sought that the court restrains the judgement/debtor respondent from transferring or otherwise alienating all its motor vehicles as then registered in its names until the decretal sum is settled in full. Further, it was sought that the court restrains the objector from transferring or otherwise alienating all motor vehicles transferred from the defendant on October 19, 2021 and now registered in the objector’s name until the decretal sum is settled in full. The applicant also sought for the costs of the reference.

2. The application was supported by an affidavit sworn by the applicant herein, Julia Wambui Ngaruyia, on November 16, 2021. According to the applicant, being dissatisfied with the ruling delivered by the Deputy Registrar on November 11, 2021, she instructed his advocates to appeal against it hence this appeal by way of reference. It was deposition that judgement in this matter was delivered on February 6, 2020 in which she was awarded Kshs 41, 775, 682. 50 plus costs and interest. At the time of the delivery of the said decision, motor vehicles KCB 022T, KCB 016T, KCB 023T, KBX 835M & KCB 428P among many others were all legally owned by the judgement debtor.

3. On September 21, 2020, she averred, through Galaxy Auctioneers, the defendant’s motor vehicles were attached in execution of the decree. However, by an application for stay of execution dated September 25, 2020, the judgement debtor obtained interim stay of execution orders issued on October 1, 2020 halting the execution process which orders were confirmed on December 1, 2020 on condition that the defendant deposits ½ the decretal sum in an interest earning account within 30 days which the Defendant failed to do.

4. However, the applicant averred, on October 19, 2020 and immediately after the 1st attachment of September 21, 2020, and even before the court would pronounce itself on stay of execution the judgement debtor transferred a total of 12 motor vehicles i.e (KCB 016T, KCB 022T, KCB 023T, KCB 020T, KBW 862R, KBT 265H, KCB 416P, KCB 420P, KBP 597V, KBW 871R, KBX 836M, KCB 427P) then registered to the judgement debtor to third parties including 10 to the objector. Subsequently, on December 29, 2020 just a day before the lapse of the stay orders issued on December 1, 2020 in HCCC No 9/2020, the judgement debtor filed a new suit no HCCC No E009 of 2020 against Takaful Insurance & the applicant as the interested party in which suit an application dated December 29, 2020 was filed seeking stay of execution of the judgement issued in HCCC No 9/2020 and for the 2nd time obtained Interim Stay Orders again halting execution pending the hearing and determination of the said application which application was eventually dismissed on April 13, 2021.

5. On April 21, 2021, the judgement debtor filed yet another application in HCCC No 9 od 2020 seeking stay of execution and obtained interim stay of execution orders issued on April 21, 2021 halting execution for the 3rd time and which application was dismissed on July 26, 2021. Thereafter, on 5th August 2021, the applicant, through Galaxy Auctioneers proceeded with execution of the judgement which execution triggered the objector’s application dated 10th August 2021 seeking that motor vehicles KCB 022T, KCB 016T, KCB 023T, KBX 835M & KCB 428P among the 10 motor vehicles transferred to them by the judgement debtor be exempt from attachment on grounds that they are the registered owners of the suit motor vehicles and on November 11, 2021 the deputy registrar upheld the objection.

6. According to the applicant, as is evident from the chronology above, the judgement debtor through 3 separate applications for stay of execution bought enough time not to settle the decree or at least comply with the conditional stay orders but to halt the execution process which was already in motion from September 21, 2020 and by so doing also discreetly transfer a bulk of its motor vehicles to the objector including motor vehicles KCB 022T, KCB 016T, KCB 023T, KBX 835M & KCB 428P which transfer took place on October 19, 2020. It was averred that from the reading of all the logbooks for motor vehicles KCB 022T, KCB 016T, KCB 023T, KBX 835M & KCB 428 as provided by the objector it is clear that:-a.Motor vehicles KCB 022T first registered on January 2, 2015 was transferred to the objector on October 19, 2020 and had 2 previous owners namely Kasssam Hauliers Ltd (the defendant) and Ms. Absa Bank Kenya PLC.b.Motor vehicles KCB 023T first registered on January 2, 2015 was transferred to the objector on October 19, 2020 and had 2 previous owners Kasssam Hauliers Ltd (the defendant) and Ms. Absa Bank Kenya PLC.c.Motor vehicles KCB 016T first registered on January 2, 2015 was transferred to the objector on October 19, 2020 and had other previous owners Kasssam Hauliers Ltd (the defendant) and Ms. Absa Bank Kenya PLC.d.Motor vehicles KBX 835M first registered on December 11, 2013 was transferred to the objector on October 19, 2020 and had other previous owners Kasssam Hauliers Ltd (the defendant) and Ms. Absa Bank Kenya PLC.e.Motor vehicles KCB 428P first registered on December 23, 2014 was transferred to the objector on October 19, 2020 and had 3 previous owners.f.Motor vehicles KBX 836M was first registered on December 11, 2013 had other previous owners Kasssam Hauliers Ltd (the defendant) and Ms. Absa Bank Kenya PLC.g.Motor vehicles KCB 427P was first registered on December 23, 2014 had other previous owners Kasssam Hauliers Ltd (the defendant) and Ms. Absa Bank Kenya PLC.

7. Based on legal advice, it was averred that the learned deputy registrar erred in law in finding that the objector was the owner of the suit motor vehicles despite the same having been transferred from the judgement debtor to the objector on October 19, 2020 after the applicant commenced execution against the judgement debtor which fact is evident from a proper scrutiny of the log book and searches that were availed to him. In her view, the learned deputy registrar erred in law in finding that the applicant did not adduce evidence to prove that the motor vehicles were transferred in the pendency of execution process despite both the objector and applicant through the supporting affidavit sworn on August 10, 2021 and the replying affidavit sworn on August 16, 2021 having annexed logbooks and search certificates showing that the motor vehicles were transferred on October 19, 2020, 8 months after delivery of judgement and just 29 days after the first attachment of the judgement debtor’s motor vehicles in execution of the decree which information I have once more reproduced in paragraph 10 and 11 above and even marked the relevant lines with an arrow.

8. On the basis of legal advice, the applicant contended that once the judgement was delivered and execution put in motion, the defendant’s goods were placed in the custody of the law and have always been and it matters not if the same have been physically seized from the defendant and therefore the transfer of the vehicles from the defendant to the objector was illegal and only meant to keep them away from my reach and scuttle the execution process which point the deputy registrar did not factor in his decision. She therefore averred that the learned deputy registrar erred in failing to find that the objector did not pay any consideration for the transfer of the suit motor vehicles hence the same could only have been held in trust for the judgement debtor and only intended to defeat my claim for the decretal sum which point the deputy registrar did not factor in his decision.

9. It was further averred that the learned deputy registrar erred in failing to find that the transfer was only meant to conceal the judgement debtor’s assets and keep them beyond the applicant’s reach and scuttle the execution process which point the deputy registrar did not factor in his decision. She averred that by upholding the objector’s ownership claims, the learned deputy registrar opened a leeway for the judgement debtor to transfer all its assets and if the same is not reversed/quashed and the respondents restrained by this court, the judgement debtor who has since exhausted the avenues available to it in staying execution will now transfer all its assets leaving me with a barren decree.

10. This court was therefore urged to dismiss the objector’s objection proceedings and restrain the judgement from transferring its motor vehicles and preserve those already transferred to the objector until my decree is settled in full.

1st respondent’s Case 11. In response to the application, the 1st respondent filed an affidavit sworn by Mohammed Kassim Hussein, one of its directors who swore that owing to tough economic time, the 1st respondent approached the 2nd respondent in 2019 with a view to selling part of the 1st respondent’s fleet to the 2nd respondent. Accordingly, the 1st respondent agreed to sell some of its vehicles, including, but not limited to the vehicles the subject of these proceedings. According to the deponent, the sale was staggered over time and it was agreed term of the sale that the 2nd respondent would take possession, use and custody of any motor vehicle for which deposit had been paid for. These transaction, it was averred was due to the pressing nature of the need for cash flow on the applicant’s end. It was deposed that the said agreement was entered into orally and was based on trust established over a long standing business relationship.

12. It was averred that it was upon the completion of the purchase price that the transfer process was completed.

13. According to the deponent, none of the vehicles in the objection proceedings were proclaimed on 21st September, 202 as shown by the proclamation. Accordingly, the vehicles were not in the custody of the law.

14. The deponent was therefore stated that this application is bad in faith and serves no meaningful purpose and should be dismissed.

applicant’s Submissions 15. It was submitted on behalf of the applicant that there are only two issues for determination namely:-1. Whether the goods first proclaimed on September 21, 2020 which was subsequently revived on August 5, 2021 were available to the defendant to transfer to the Objector and other third parties so as to create the illusion of different legal personalities and defeat execution.2. Whether the Objector has adduced sufficient evidence to prove that the goods first proclaimed on September 21, 2020 and subsequently revived on August 5, 2021still belong or previously belonged to the judgement debtor.

16. As regards the first issue, it was submitted that the objector in its replying affidavit confirms that motor vehicles KCB 022T, KCT 016T, KCB 023T, KBX 836M & KCB 427P were directly transferred from the defendant on October 19, 2020, after September 21, 2020 when the same had already been placed in the custody of the law and the court through the auctioneer. It was contended that the objector has not adduced any sale agreements, bank payments, receipts, invoices, delivery notes or any purchase documents issued by the defendant showing the acquisition of these vehicles from the defendant prior to their proclamation in execution of this court’s judgement of February 6, 2020. It was further submitted that the objector failed to explain how it acquired a good title of the proclaimed vehicles which had by law been removed from the possession of the judgement debtor and placed in the custody of the law and the court through the auctioneer so as to satisfy the judgement debt yet the judgement debtor did not redeem the proclaimed goods by paying the judgement amount to the plaintiff.

17. In support of her submissions the applicant cited Court of Appeal at Nairobi Civil Appeal No. 195 of 2004 - National Industrial Credit Bank Limited v SK Ndegwa Auctioneer.

18. It was submitted that after the placing of all the attached goods in the custody of the law, the defendant was deprived off their legal possession and physical control and could not confer any title to the objector or any other third party hence the alleged title by the objector is defeasible. In this regard the applicant cited the decision of the Court of Appeal at Nairobi in Civil Appeal No. 165 of 2007- D. Njogu & Company Advocates v National Bank of Kenya Limited and the holding of the Court of Appeal at Nairobi in Civil Appeal No. 55 of 2016 - Five Forty Aviation Limited v Erwan Lanoe.

19. According to the applicant, it does not require laborious argument that the attached vehicles were transferred to the objector when the judgment-debtor had already been deprived of the legal possession and physical control of the goods as the same had already been placed in the custody of the law and the court through the auctioneer and the only way the judgement debtor could redeem them was by paying the plaintiff’s debt. According to the applicant, from the searches attached and by the express admission of the objector, these vehicles were as at the time of judgement and their proclamation still registered in the names of the defendant and Ms. ABSA Bank Kenya PLC and were only transferred to the objector on October 19, 2020. It was therefore submitted that the objector cannot sustain his cause of action by showing that he participated (sic) sanctioned an illegality which had the effect of giving undue advantage and under the circumstances, the court cannot come to his aid.

20. The court was urged not to entertain the objector’s illegalities or allow itself to be made the instrument of barring the decree holder from realizing the fruits of her judgement as in so doing it would only aid illegalities more so that the illegalities have been duly brought to the notice of the court. In the applicant’s view, it does not confer upon the objector a defense that he may not have been aware of the same as this court has an obligation not to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of an illegal contract or transaction more so as we have brought these illegalities to the attention of the court.

21. As regards the second issue, whether the Objector has adduced sufficient evidence to prove that the goods first proclaimed on September 21, 2020 and subsequently revived on August 5, 2020 belonged or still belong to the judgement debtor, the applicant reiterated that motor vehicles KCB 022T, KCT 016T, KCB 023T, KBX 836M & KCB 427P were previously registered in the names of the defendant and that the objector did not annex any evidence of actual purchase of the objected goods from the defendant as it only attached 5 log books which showed that it was the current registered owner of 5 out of the 41 vehicles attached.

22. From the annexed logbooks marked, it was submitted that it is evident and now conceded by the objector that motor vehicles KCB 022T was first registered to the defendant on 2nd January 2015 and transferred to the objector on October 19, 2020, KCB 023Twas first registered to the defendant on January 2, 2015 and transferred to the objector on October 19, 2020, motor vehicles KCB 016T was first registered to the defendant on January 2, 2015 and transferred to the objector on October 19, 2020, KBX 836M was first registered to the defendant on December 11, 2013 and transferred to the objector on October 19, 2020 and KCB 427P was first registered to the defendant on December 23, 2014 and transferred to the objector on October 19, 2020. Put in other words as at the time the plaintiff commenced execution on September 21, 2020 all these vehicles were registered in the names of the defendant which had the vehicles transferred to the objector on October 19, 2020 so as to defeat the execution commenced on September 21, 2020.

23. According to the applicant, these transfers were done barely a month after the proclamation of September 21, 2020 after the defendant obtained interim stay orders halting the execution of her judgement delivered on February 6, 2020 hence these subsequent transfers were only effected after execution had commenced, contrary to the law and are thus meant to defeat execution which had placed the attached vehicles in the custody of the law and the court through the auctioneer.

24. According to the applicant, in order for the objector to sufficiently rebut ownership of motor vehicles KCB 022T, KCT 016T, KCB 023T, KBX 836M & KCB 427, it should have not only provided purchase orders, invoices, payments and receipts bearing it’s names on acquisition of these vehicles as the availing of their log books does not necessary confirm that the objector paid any consideration for these vehicles more so as the same were never available for sale having been placed in the custody of the law and the court through the auctioneer. In this regard reliance was placed on the decision of the Court of Appeal at Nairobi in Civil Appeal No. 60 of 2007 - Zingo Investment Limited v Miema Enterprises Limited which had this to say :-“In the persuasive High Court case of Akiba Bank Ltd v Jetha& Sons Ltd (2005) eKLR it was correctly held that for an objector to succeed in his objection he must exhibit evidence of his legal or equitable interest in the whole or part of any property attached in execution of decree. In Dubai Bank (K) Ltd v Come- Cons Africa Ltd and Impak Holdings Co Ltd (2012) eKLR the High Court correctly expressed itself thus:“Although the law is that in the objection proceedings the court does not and cannot make a finding as to the ownership of the property the subject of the objection proceedings, but simply decide whether or not the objector has interest legal or equitable in the attached property, it is equally true that the onus of proof in objection proceedings is on the objector to establish ownership see Chatabhai M Patel & another HCCC No 544 of 1957 (Lewis) On 8/12/58 Hcu (1958) 743. (Emphasis added).It is our considered view that in the absence of proper documents of ownership like receipts, invoices, delivery notes and purchase documents, the appellant’s objection should fail. (See Scanhouse Press Ltd v Times New Services Ltd & another Civil Case No 412 of 2008; Charles Muraya Ndegwa v Nahashon Gatere& another Civil Case No 29 of 2005) (Emphasis added).”

25. In support of her case, the applicant also cited Kisii HCCA No 112 of 2019 - Damacline Kwamboka Kunga v Caroline Bosibori Oncheka &another (Suing as the legal representative of the Estate of Henry Akara Onsomu) & another and Hezron Onsongo t/a Hegeons Auctioneers & another (Interested Parties)[2020] eKLR.

26. It was submitted that from the very logbooks first attached by the objector in its application dated August 10, 2021 it should have been clear to the deputy registrar that all the 5 vehicles were:-.1. As at February 6, 2020 when judgement was entered for the plaintiff registered in the names of the defendant and Ms. ABSA Bank Kenya PLC.2. As at 21st September 2020 when the plaintiff commenced execution as against the defendant registered in the names of the defendant and Ms. ABSA Bank Kenya PLC.3. Were all transferred to the objector on October 19, 2020 after the plaintiff commenced execution.4. These transfers were effected barely a month since the plaintiff commenced execution on September 21, 2020. 5.The timing of the transfers coupled with the absence of any other document could only have been for the purposes of defeating execution.

27. This position, according to the applicant is based on the fact that the defendant in making the first application for stay of execution on September 25, 2020 in the supporting affidavit sworn by Mohammed Kassam on September 25, 2020 under oath swore as follow:-“8. ….The defendant is carrying on the business of general transporters and all its motor vehicles and trailers have been attached in execution of the decree passed in this case and if the same is seized in terms of the proclamation of attachment of moveable property served on it by Galaxy Auctioneers on September 21, 2020, the defendant will be forced to shut down its business…..

9. The defendant is prepared to give appropriate security for the entire decretal amount herein by depositing with this honorable court the originals of all the logbooks in respect of all its proclaimed motor vehicles and trailers…”(Emphasis added).

28. Reference was also made to paragraph 14 where the defendant in making the third application for stay of execution in the supporting affidavit sworn on April 20, 2021 by Mohammed Kassim Hussein in support of their application for stay of execution dated April 20, 2021, states as follows;14. That we stand to suffer irreparably in the event execution is levied as the proclaimed items constitute the entire assets of the applicant (Annexed hereto and marked MKH-5 is a copy of the Proclamation Notices previously issued). The Proclaimed assets amount to about Kshs 40 000000/= Attachment and sale of these assets will mean the liquidation of the defendant/applicant.

29. From the foregoing averments, it was submitted that it is clear that all the suit motor vehicles belonged to the defendant/applicant as at 6th February 2020 when judgement was entered for the plaintiff, 21st September 2020 when execution commenced, as at September 25, 2020 when the 1st application for execution commenced and even as late as April 20, 2021 when the defendant made the third application for stay of execution hence the transfer to the objector on October 19, 2020 did not necessarily remove the attached goods from the defendant’s ownership hence could not have been sold in 2019.

30. It was also noted that at no point did the defendant in urging its 3 previously dismissed application for stay of execution mention that motor vehicles KCB 022T, KCT 016T, KCB 023T, KBX 836M & KCB 427P belonged to the objector or were held for the benefit of objector. To the contrary, the defendant offered to deposit all the original log books for the proclaimed motor vehicles meaning that as at September 25, 2020 the logbooks were still in the custody of the defendant. Further, there is no way the defendant could have suffered substantial loss or risk shutting down business over sale of the motor vehicles unless the same belonged to them. It is further worth noting that it is over 1 year since the said motor vehicles were attached in execution of the decree. No explanation was given why it took the objector over 1 year to raise the objection.

31. It was urged that the only logical conclusion is that as at the time of judgement and execution, the vehicles belonged to the defendant and not the objector. Having demonstrated above that from September 21, 2020 all the defendant’s motor vehicles had been placed in the custody of the law, it follows that the same were not available for sale, transfer or any form of alienation as the only way the same could have been redeemed was by the defendant’s satisfaction of the plaintiff decree.

32. It was therefore submitted that it was an error of both law and facts for the learned DR to lift the attachment on the 5 motor vehicles against the evidence that pointed to a well orchestrated scheme by the defendant to evade execution of this court’s decree. According to the applicant, the objector has not only failed in adducing sufficient evidence that all the attached goods belong to it but miserably failed to demonstrate that the attached goods had been removed from the custody of the law and the court through redemption so as to be available for sale. The court was urged to hold that all the subsequent transfers by the defendant were meant to remove the attached goods from the custody of the law and the court so as to frustrate execution of the plaintiff’s judgement which was delivered on February 6, 2020 and to allow the application dated November 16, 2021 with Costs to the plaintiff decree holder.

33. In his ruling, the learned trial magistrate found that whereas the applicant herein averred that the attached vehicles were among the various motor vehicles which the defendant transferred to the objector and other third parties during the pendency of the execution, and relied on documents from NTSA, a perusal of the same records did not reflect any of the subject motor vehicles being transferred. The court therefore found that from the annexures of the copies of the logbooks annexed, the said vehicles were registered in the name of the objector ad not the defendant and there was no evidence to the contrary. Accordingly, the court found that the vehicles could not have been the subject of execution and allowed the objection.

34. It was this decision that provoked this application.

Determination 35. I have carefully considered the application, the affidavits filed, submissions made as well as authorities cited by counsel for both parties.

36. The matter for determination before me is whether the goods in question were under the custody of the law at the time they were purportedly sold to the Objectors and if so whether the Objection ought to have succeeded.

37. Before dealing with the maters before me, it is important to set out the law guiding objection proceedings.

38. Order 22 rule 51(1) of the Civil Procedure Rules provides as follows;Any person claiming to be entitled to or to have a legal or equitable interest in the whole 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 parties to the decree-holder, of his objection to the attachment of such property.

39. Under the said provision, what the court is to determine is whether the Objector has an interest, legal or equitable in the attached property.

40. According to section 8 of the Traffic Act;The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle.

41. Therefore, prima facie, the Objector is deemed as the owner of the said vehicle. However, that presumption is rebuttable. That the burden of proving interest legal or otherwise, in the attached property, lies on the objector is not in doubt. This was clearly held in Arun C. Sharma v Ashana Raikundaliat/aA. Raikundalia & Co. Advocates & 4 others [2014] eKLR where the court held as follows;“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. H as 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”

42. Similarly, in Precast Portal Structures v Kenya Pencil Company Ltd & 2 others [1993] eKLR the court expressed itself thus:‘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."

43. However, section 109 of the Evidence Act, cap 80, Laws of Kenya, places the burden of proof on him. The section provides that: -The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie in a particular person.

44. Therefore, once the objector produces the logbook which discloses that he is the registered owner of the attached vehicle and the legal presumption being in her favour, the onus shifts onto the decree holder/attaching creditor to prove the contrary as stated in section 8 of the Traffic Act. In those circumstances, the legal burden still remains on the Objector but the evidential burden shifts to the respondent to show that despite the prima facie registration of the vehicle in the name of the Objector, the Objector does not have any interest, legal or equitable in the same.

45. In this case, the issue is however, whether at the time of the commencement of the execution, the motor vehicles in question were registered in the names of the objector or the defendant judgement debtor. The resolution of that issue is what would determine whether or not the transfer effected in favour of the objector was lawful. The law is that once the process execution is put into effect by way of proclamation of the goods, that amounts to an attachment. It was therefore held by Mohammed Ibrahim, J (as he then was) in National Industrial Credit Bank Limited v Majani Mingi Sisal Estate Limited &others Milimani Commercial Courts Civil Suit No. 1818 of 2000 that the process or act of proclamation (or promulgation) is not a distinct and separate legal process. It is the first step act or step in the process of attachment in Kenya as prescribed by rule 12 of the Auctioneers Rules. Once the proclamation takes place the law deems that the goods are seized and has come into the custody and control of the court as the bailiff is the court’s agent and therefore the process of attachment takes effect and it does not subsequently matter at what stage it is terminated.

46. A.K Ndung’u, J in Hezron Onsongo t/a Hegeons Auctioneers & another (Interested Parties) [2020] eKLR also added his voice to similar circumstances when he expressed himself as follows;“10. It is apparent from the proceedings that the defendant was unable to settle the judgment debt since execution proceedings were commenced against her. The defendant filed an application dated July 24, 2017 in a bid to stop the attachment of motor vehicle registration number KCC 814S, which is the subject vehicle herein. For undisclosed reasons, the defendant withdrew the application dated July 24, 2017 and filed a similar application on November 8, 2017. That application was allowed on condition that the entire decretal sum would be deposited in an interest earning account in the name of both counsels on record within 14 days.11. On February 14, 2018, the parties entered a consent that the vehicle would be released to the defendant upon payment of the decretal sum and the auctioneer’s charges. It is against this backdrop that the appellant instituted the objection proceedings through the application dated August 6, 2019. I agree with the trial court that there had been an inordinate delay on the part of the appellant in bringing the application as the same was filed more than two years after the proclamation of the vehicle on June 7, 2017. 12. I am also convinced by the respondents’ argument that the transfer of the suit vehicle from the defendant to the appellant was an ill advised attempt to circumvent the course of justice. This finding is informed by several observations. First, the appellant’s assertion that she had purchased the vehicle from the defendant at a purchase price of Kshs. 1,800,000/= was not supported by an agreement or relevant documentation to show that consideration passed from the appellant to the defendant. Secondly, no proof was adduced before the trial court to show that the suit vehicle was transferred to the appellant on April 10, 2015 before the execution process began.13. It can also be inferred from the applications for stay filed by the defendant on July 24, 2017 and November 7, 2017 that the suit vehicle belonged to the defendant when the execution process commenced. Given that the vehicle had been proclaimed by the auctioneer on June 7, 2017, any subsequent transfer of the vehicle to the appellant was a contravention of rule 14 of the Auctioneers Rules which provides that, “A person who removes, alters, damages, substitutes or alienates any goods comprised in the proclamation, before they are redeemed by payment in full of the amount in the court warrant, or letter of instruction, or in such lesser amount as the creditor or his advocate may agree in writing, commits an offence.”14. Consequently, such an agreement to transfer attached goods would be illegal ab initio and unenforceable. (SeeNjogu & Company Advocates v National Bank of Kenya Limited Civil Appeal No 165 of 2007 [2016] eKLR, Patel v Singh (2)[1987] KLR 585 and Archbolds (Freightage) Ltd v S Spanglett Ltd[1961] 1 QB 374)15. In objection proceedings, the burden of proof rests on the objector to prove that he is entitled or has a legal or equitable interest in whole or part of the property attached in execution of a decree. The court in Precast Portal Structures v Kenya Pencil Company Ltd & 2 others Civil Case No. 969 of 1990 [1993] eKLR expounded on this as follows;The burden is on the objector to prove and establish his right to have the attached property released from the attachment....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.16. The circumstances under which the vehicle was transferred to the appellant by the defendant are unclear. The appellant did not produce a sale agreement, application for transfer or other relevant documents to shed light on this. The material before this court shows that the vehicle still belonged to the defendant at the time of its proclamation by the auctioneer. The appellant did not refute the claim that she is the defendant’s sister. Taken holistically, the evidence points to a scheme orchestrated by the defendant to evade execution.17. Nothing demonstrates this well calculated scheme and collusion, than the defendants own averments in two affidavits sworn by herself in support of previous applications before the trial being her affidavit sworn on the 24/7/2017 at paragraph 2 and one sworn on 7/11/2017, again at paragraph 2, where she is categorical in her sworn averment that motor vehicle Registration No. KCC 814S belonged to her.18. These averments by the defendant lay bare and take away any credibility that the assertions by the appellant in paragraph 7 of her affidavit sworn on 26/8/2019 and filed before the trial court could have bought the vehicle from the defendant in the year 2015 yet as at July and November 2017, the plaintiff herself swore on oath that the motor vehicle was hers. In any event evidence of such a sale, if at all, is not tendered.19. To borrow from the words of Warsame J (as he then was) in Miema Enterprises Ltd v Njoka Tanners Ltd [2007] eKLR;“Having heard the submissions of both advocates and having read the various materials presented, I am satisfied that the objection has no legal basis. I hold that there is no evidence to show that the 2nd objector owns the machinery that were attached by the plaintiff. I am satisfied beyond doubt that the goods attached are the property of the defendant disguised in a manner to defeat the claim of the plaintiff. It is my decision that the objection is based on distortion, deceit and deception with a view to distract the cause of justice.This court has the eyes, mind and ears to see through that deceit and deception. Indeed the assets of the defendant company is held by this dummy company called Zingo Investments Ltd in order to defeat or derail the liabilities that had accrued to the company.”20. The circumstances in this case are distinguishable from the case of Naftali Onchweri Nyangwachi v Meshack Osiemo Nyagwach & 3 others Civil Appeal No 170 of 1991 [1993] eKLRwhich was cited by the appellant. In that case the attached vehicle had all along belonged to the objector. There had been no transfer of title to the attached vehicle from the judgment debtor to the objector as in this case. The case of Atogo v Agricultural Finance Corporation Civil Appeal No 165 of 1989 [1991] eKLR was also distinguishable from the present case as in that matter the vehicle had belonged to the objector long before its attachment, which is not the case here.21. For all the reasons given above, I find that the appellant failed to discharge her burden of proving that she was entitled to the vehicle.”

47. This position is supported by the Court of Appeal’s decision in Nairobi Civil Appeal No 195 of 2004 - National Industrial Credit Bank Limited v S. K. Ndegwa Auctioneer where it was held as follows.“The actual words used in the two rules is not decisive of whether an attachment has taken place. One has to consider the essence and purpose of the attachment. The purpose of the attachment is the execution of the decree. The essence of the attachment is to remove the goods from the possession of the judgment-debtor and place them in the custody of the law so that they can be sold to satisfy the judgment debt if the judgment-debtor does not pay the debt. To place the goods in the custody of the law it is not necessary, as Mr. Gatonye correctly submitted, that the goods must be carried away from the premises of the judgment-debtor. In the commentary to order 21 rule 43 of the Indian rule which is in parimateria to order 21 rule 38, the authors of Mulla, The Code of Civil Procedure 16th Edition state in part at page 2667:“where a warrant of attachment is executed by affixing it to the outdoor of the warehouse in which goods belonging to the judgment debtor are stored, it amounts to “actual seizure” within the meaning of the present rule”.It is clear from rule 12 as read with rule 14 of the Auctioneers Rules and the contents of the prescribed form, that is, Sale Form 2 that the proclamation of the movable goods is legally and effectively an attachment. From the moment the goods are proclaimed, the judgment-debtor is deprived of the legal possession and physical control of the goods and instead the goods are placed in the custody of the law and the court through the auctioneer. The judgment-debtor can only redeem them by the payment of the debt. If the judgment-debtor fails to pay the auctioneer moves to the second stage of conducting the sale of the attached goods.”

48. Whereas the process of attachment commences with the proclamation, the Court of Appeal in Abdalla Ali Hussein Mohamed v Clement A. Ojiambo &others Civil Appeal No. 118 of 1997 held that:“Where an alleged transfer of a motor vehicle is made when the execution of the decree is about to be made the Court is entitled to assume that the sale was not genuine and was intended to avoid the due process of execution…section 8 of the Traffic Act simply states that unless the contrary is proved, the person in whose name the motor vehicle is registered is deemed to be the owner; in other words the fact of registration is only prima facie evidence of ownership and contrary facts can show otherwise and in this case there was sufficient material before the learned Judge to conclude that such registration was effected to avoid the execution of the decree.”

49. I however do not take it that the Court meant that a person against whom judgement has been delivered is thereby barred from disposing of his property by that mere fact. However, where the disposal is effected in such a way as to defeat the imminent execution, then the transfer may be successfully challenged. Further, the mere fact that there is an order staying execution does not reverse the decision stayed. It was therefore held in the Commissioner of Income Tax v Irish Electrical Co. Ltd [1969] EA 58 that:“In this case the appellant left the goods and quit the premises solely because of issue of the interim injunction, intending to return if the application for permanent injunction was dismissed, and assuming that the status quo would be maintained in the interval. There is no evidence at all in the record to support the finding that the appellant wilfully abandoned the distress, or intended to abandon it, and the court is satisfied that in fact he did not abandon it…The purpose of the interim injunction was to ensure that matters were kept in statu quo until the question was finally disposed of in accordance with order 39 rule of the Civil Procedure (Revised) Rules, 1948, and is also apparent by reference to the interim injunction itself…The appellant did not abandon the distress but only obeyed the order of the Court and proceeded no further on the matter whilst the interim injunction was pending. On the discharge of the interim injunction the matter reverted to the original position i.e. that the appellant had already seized these goods and these were in his constructive possession on the premises of the debtor in accordance with the agreement between the debtor and himself. There was at this stage, therefore no need for the appellant to proceed with another distress on goods already seized and in his custody, but rather he would proceed to enforce the distress from the stage at which action had been suspended by reason of the interim injunction. The appellant’s distress therefore had priority over the subsequent attachment of the goods by the respondent company.”

50. It is important to state that the vehicles the subject of the decision before the trial court, going by the ruling, were Registration Nos. KCB 022T, KCB 016T, KCB 023T, KBX 835M and KCB 428P. The applicant’s case before the trial court and before this court is that these vehicles were first attached on 21st September 2020 before the subsequent attachment on 5th August, 2021. The applicant attached a copy of the proclamation dated 21st September, 20200. I have gone through the said proclamation and I have not identified any of the vehicles the subject of the objection as being one of the vehicles that were proclaimed. Apart from KCB 428P, the other vehicles however appear in the proclamation dated August 5, 2021. According to the applicant, the said vehicles were transferred on October 19, 2020.

51. In this case, it is the applicant’s case that the vehicles in question were proclaimed twice on September 21, 2020 and August 5, 2021. Why it as necessary to do this is not clear. It is not alleged that the first proclamation was found to be unlawful. If what barred the sale of the properties attached as a temporary stay, there was no need to proclaim the same after the stay had been lifted. What a necessary was a fresh notification of sale. As I have noted above I have not seen any proclamation of the five vehicles which were the subject of the objection proceedings before August 5, 2021. No such evidence was placed before the learned deputy registrar and none has been placed before me in this application.

52. In the premises, I see no reason for faulting the learned deputy registrar in arriving at his decision in the manner he did.

53. Consequently, this appeal/application fails and is dismissed but with no order as to costs as the respondents failed to furnish the Court with soft copies in word format as directed.

54. It is so ordered.

G V ODUNGAJUDGERULING READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 6TH DAY OF OCTOBER, 2022M W MUIGAIJUDGEDelivered the presence of:-