[2022] KEHC 332 (KLR)

Obadha v Omoro (Civil Case E014 of 2021) [2022] KEHC 332 (KLR) (4 May 2022) (Judgment)

Neutral citation: [2022] KEHC 332 (KLR)

Republic of Kenya

In the High Court at Siaya

Civil Case E014 of 2021

RE Aburili, J

May 4, 2022

Between

Mary Anyango Obadha

Appellant

and

Lilian Atieno Omoro

Respondent

(Being an appeal from the ruling of Hon. C.N. Sindani delivered on 5th May 2021 in Ukwala PMCC No. 55 of 2018)

Judgment

Introduction 1. The appellant herein Mary Anyango Obadha was an objector to attachment and sale of movable property in execution of decree in Ukwala PMCC No. 55 of 2018. Vide an application dated 14. 10. 2020, she sought from the trial court orders of stay of execution and also that the proclaimed properties should not be attached.

2. The appellant’s application was grounded mainly on the fact that the said proclaimed items belonged to her and that she was not a party to the suit between the respondent and two others presently not before this court.

3. Opposing that application before the trial court, the respondent herein filed a replying affidavit arguing that the motor vehicles proclaimed had been owned by the defendant who upon service of the proclamation notice, the defendant in the said suit conspired with the appellant herein, his wife, to have the vehicles transferred to her.

4. In his finding, the trial court agreed with the respondent that the appellant had purportedly purchased the said property so as to defeat the execution of a legal court order and had thus approached court with unclean hands. The trial court thus dismissed the appellant’s application with costs to the respondent who was the plaintiff/decree holder.

5. Aggrieved by the trial court’s ruling, the appellant filed this appeal on 26th May, 2021 vide a memorandum of on appeal dated 26. 5.2021 setting out the following grounds:a.The trial magistrate failed to appreciate the ingredients of objection proceedings under Order 22 rule 55 of the Civil Procedure Rules.b.The trial magistrate erred in law and fact in disallowing the objection proceedings, when the proclaimed and attached properties KBV 211X and are the appellant’s properties and that the appellant was not a party to the suit.c.The ruling was against the weight of evidence on record.

6. The parties agreed to dispose of the appeal by way of written submissions.

The Appellant’s Submissions 7. Counsel for the Appellant submitted that the trial court did not appreciate the ingredients of the objection proceedings under Order 22 Rule 51 of the Civil Procedure Rules as the appellant was not a party to Ukwala SRMCCC No. 55 of 2018 and therefore not under any obligation to liquidate the decretal sum therein.

8. The appellant further submitted that she was the owner of the motor vehicles which were proclaimed and that motor vehicle KBV 211X which was attached was registered in her name and as such, the finding by the trial court that the defendant and the appellant conspired to have the motor vehicles transferred in the appellant’s name was erroneous.

9. The appellant’s counsel submitted that the fact that the appellant was the wife to the defendant in the trial court was not a good reason to dismiss the objection proceedings and that thus the trial court’s ruling was against the weight of evidence on record.

The Respondent’s Submissions 10. It was submitted on behalf of the Respondent that the appellant’s ground of appeal that the trial court failed to appreciate the ingredients of objection proceedings under Order 22 rule 55 of the Civil Procedure Rules was a blanket ground of appeal as it was not clear from the pleadings whether the appellant relied on Order 22 Rule 55 or Rule 51 in support of his grounds of appeal and that as such, it was not clear which law the ground of appeal was predicated upon and further that there was no demonstration of the particular ingredients that the court did not appreciate.

11. The Respondent’s Counsel submitted that Michael Obadha, the appellant’s husband and defendant Judgment debtor in the lower court was the registered owner of motor vehicle registration Nos. KBV 211X, KBY 676K and KAU 728P as at 8th June 2018 when the road traffic accident, the cause of action and subject matter of the suit arose and further, that he still owned those motor vehicles when the objection proceedings commenced on the 23. 10. 2020.

12. Further submission was that the evidence before the trial court was overwhelmingly in her favour as was evidenced before the trial court and that the appellant’s evidence was not only contradictory but also forged as the appellant annexed a log book for motor vehicle registration No. KBY 676K, yet she sought the release of motor vehicle registration No. KBV 211X.

13. It was further submitted that the transfer of the vehicles to the appellant’s name was done after the same were proclaimed.

Analysis and Determination 14. This court has considered the grounds of appeal and submissions by counsel for both parties. This being a first appeal, parties are entitled to and expect a rehearing, reevaluation and reconsideration of the evidence afresh and a determination of this court with reasons for such determination. In other words, a first appeal is by way of retrial and this court, as the first appellate court, has a duty to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, of course bearing in mind that it did not see witnesses testifying and therefore give due allowance for that, See the Court of Appeal case of Gitobu Imanyara & 2 others v Attorney General [2016] eKLR.

15. The issue for determination crystallising from the facts of this case is whether the proclaimed properties herein should be attached in execution of decree against the defendant in favour of the respondent herein in Ukwala PM CC No. 55 of 2018.

16. Order 22 Rule 51(1) of the Civil Procedure Rules provides that:“Any person claiming to be entitled to or have a legal 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 attachment of such property.”

17. It is trite law that the objector to attachment in execution proceedings has the burden of proof in relation to the facts in issue and relevant to the objection. Generally speaking, the facts in issue in any case are those disputed issues of fact which a party must prove to succeed and obtain judgement in their favour.

18. In Arun v C. Sharma Astana Raikundaha t/a Raikundaha & Co. Advocates & 4 Others [2014] eKLR the court stated 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 or to have a legal or equitable interest in the whole or part of the property.”

19. On the evidential material to be considered by a court prior to a court granting an objector a release from warrants of attachment, the court in the cases of Grace Wanjiru Mbugua v Philiph Karumi Matu [2009] eKLR and Precast Portal Structures v Kenya Penal Co. Ltd & 2 Others [1993] eKLR observed that:“The burden is on the objector to prove and establish his right to have attached property released from 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 judgement debtor for himself or by some other person in trust for the judgement 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 judgement 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 judgement debtor or that ownership has changed, whereby the judgement debtor has been divested of the property in order to evade execution, on the change is tainted with fraud, the court shall dismiss the objection.”

20. The respondent herein and decree in the lower court holder through Dasemy Auctioneers, attached properties believed to be belonging to the defendant/judgement debtor being motor vehicles KBV 211X, KBY 767K, KCU 085K and KCJ 431P.

21. The appellant’s case before the trial court was that the respondent had proclaimed and attached properties which belonged to her and not the defendant/judgement debtor.

22. In her supporting affidavit, the appellant specifically referred to motor vehicle registration number KAU 728P which she deposed that she acquired from Ziwani Investment sometime in 2009.

23. The appellant, in support of her objection proceedings, produced a logbook with the Transfer No. 2019072501294 for motor vehicle registration KBY 767K that detailed her as its registered owner.

24. In her response, the respondent, in a replying affidavit sworn on the 10. 11. 2020 and filed on the 11. 11. 2020 stated that the motor vehicles that were proclaimed were owned by the defendant at the time of institution of the suit upon which judgement was entered against the defendant judgement debtor Michael Obadha on the 13. 3.2019 and that who, upon being served with the proclamation notice, conspired with the appellant herein, his wife, to have the proclaimed vehicles transferred to her.

25. From the foregoing, it is clear that the appellant’s claim for instituting the objection proceedings against the respondent before the trial court specifically regarded motor vehicle registration number KBY 767K. Motor vehicle registration number KAU 728P which she referred to in her supporting affidavit was not proclaimed by Dasemy Auctioneers who were instructed by the respondent.

26. For the purposes of this appeal therefore, the appellant’s claim of ownership of proclaimed goods is in regard to motor vehicle registration number KBY 767K only.

27. As earlier stated, the appellant herein produced a logbook Transfer No. 2019072501294 for motor vehicle registration KBY 767K that detailed her as the owner of the said vehicle. It is not clear from her evidence when the said logbook was issued.

28. In rebuttal, the respondent produced Copy of Records from the National Transport and Safety Authority that showed that as at 10. 6.2019, motor vehicle registration KBY 767K was still registered in the name of judgement debtor Michael Obadha. This is 3 months after judgement had been entered against the judgement debtor and another 3 months before the proclamation notice was issued to the judgement debtor on the 19. 9.2019 when proclamation was done at his premises, which proclamation the judgement debtor witnessed as is evident from the proclamation notice filed in court on the 18. 2.2020.

29. It is therefore evident from the evidence adduced that the transfer of motor vehicle registration KBY 767K was effected after proclamation had been done in execution of decree of the court, against the judgment debtor. This evidence compared to the evidence adduced by the respondent in her replying affidavit of how the judgement debtor has endeavoured to avoid fulfilling the decree issued to the respondent, I find that the transfer of motor vehicle registration KBY 767K from the defendant/judgement debtor to the appellant herein was an attempt to evade execution of lawful decree of the court and therefore I concur with the findings of the trial magistrate that the objection proceedings dated 14. 10. 2021 are devoid of any merit and must be dismissed.

30. Accordingly, I find this appeal devoid of any merit. I dismiss and uphold the ruling of the trial court dismissing objection proceedings lodged by the appellant herein. The appellant shall pay costs of this appeal to the respondent.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 4TH DAY OF MAY, 2022R.E. ABURILIJUDGE(This Judgment was to be delivered on 3rdMay 2022 but 3rdMay was gazetted a public Holiday after the court had fixed the judgment date)