https://new.kenyalaw.org/akn/ke/judgment/scc/2026/229

**REPUBLIC OF KENYA** **IN THE SMALL CLAIMS COURT OF KENYA AT UASIN GISHU COUNTY COURT NAME: ELDORET SMALL CLAIMS COURT** **CASE NUMBER: SCCCOMM/E4745/2025** **COLLINS OTIENO ODHIAMBO VS ZACHARIA MWATHAMA AND RICHARD NAMWANDO** **RULING** **Introduction** 1. What is before the Court for determination is the Objector's application dated 17th July 2026. The Objector principally seeks orders restraining Top Leaf Auctioneers from selling, transferring, disposing of or in any manner interfering with the goods attached from her premises; an order directing the immediate restoration and return of the goods removed from her premises; an order lifting the attachment against the Objector's goods; a declaration that the attachment and removal of the said goods was wrongful, unlawful and irregular; and costs of the application. 2. The application is premised on the grounds set out on its face and is supported by the affidavit of Catherine Nanjala Wekesa, the Objector. The Claimant/Respondent opposes the application through a replying affidavit sworn by Collins Otieno Odhiambo on 29th July 2026. **Objector's Case** 1. The genesis of the application is the judgment entered in favour of the Claimant against the Respondent on 21st January 2026. Following the judgment, the Claimant commenced execution proceedings and caused various movable goods to be proclaimed and attached by Top Leaf Auctioneers. 2. The Objector subsequently moved the Court contending that the attached goods belong to her and not to the judgment debtor. She maintains that her property was unlawfully subjected to execution in satisfaction of a decree against the 2nd respondent. The Objector states that on 14th July 2026, Top Leaf Auctioneers, acting pursuant to warrants issued in the execution proceedings, entered her premises and attached and removed various household goods. She contends that the attachment was undertaken on the erroneous assumption that the goods belonged to the judgment debtor. 3. The Objector further states that she is the registered proprietor, together with Newton Munialo, a minor, and Ignatius Kuloba, a minor, of land parcel No. WAITALUK/KAPKOI BLOCK 6/KIMOSON/427. She has exhibited a copy of the title deed in support of that assertion. 4. In respect of the movable goods, the Objector states that the same were acquired through her own resources over a period of time. At paragraph 7 of her supporting affidavit, she lists the goods allegedly attached and exhibits receipts relating to some of the items. She maintains that the absence of receipts for every item does not, by itself, negate her ownership. The Objector therefore contends that unless the Court intervenes and prevents the sale of the attached goods, she will suffer loss and prejudice in respect of property that does not belong to the judgment debtor. **Claimant's Response** 1. The Claimant opposes the objection. His case is that he has known the judgment debtor since 2009 and has previously visited his home situated on WAITALUK/KAPKOI BLOCK 6/KIMOSON/427. He states that the judgment debtor and the Objector have been living together as a couple. The Claimant disputes the Objector's assertion that the land belongs to her exclusively and contends that the judgment debtor has an interest in the property. He further contends that the title deed exhibited by the Objector does not, in itself, resolve the question of the ownership. 2. The claimant deposes that the receipts produced by the Objector. In particular, he questions the authenticity of the receipt relating to the cooker and points to what he considers inconsistencies in the dates and the absence of customary serial numbers. He further contends that the Objector did not produce M-Pesa statements or other independent evidence to corroborate the alleged purchases. 3. Further the claimant submits that the receipts produced are self-generated or otherwise unreliable and that the Objector has failed to establish ownership of all the goods attached. He therefore urges the Court to dismiss the application with costs. **Analysis and Determination** 1. The Court has considered the application, the affidavits filed by the parties, the documents exhibited and the submissions made. The starting point in objection proceedings is that execution is being undertaken pursuant to a valid decree against the judgment debtor. The question before Court is: 2. whether the properties attached in execution to satisfy the decree belongs to the judgment debtor or the objector? 3. whether a third party has established a legal or equitable interest sufficient to warrant its release from attachment. 4. Under Order 22 Rule 51 of the Civil Procedure Rules, a person claiming to have a legal or equitable interest in property attached in execution of a decree may give notice of his or her objection to the attachment. Upon such objection, the Court is required to investigate the claim in accordance with the law. The burden rests upon the Objector to establish that she has a legal or equitable interest in the property sought to be released from attachment. This position was stated in Arun C. Sharma v Ashana Raikundalia T/A A. Raikundalia & Co. Advocates & 4 Others [2014] eKLR, where the Court held that the objector bears the burden of proving that he or she is entitled to, or has a legal or equitable interest in, the whole or part of the attached property. 5. Similarly, in Grace Wanjiru Mbugua v Philip Karumi Matu [2009] eKLR, the Court stated that the burden is upon the objector to prove and establish the right to have attached property released from attachment. The Court may release the property where it is satisfied that the property was not, at the time of attachment, held by the judgment debtor for himself or in trust for the judgment debtor, or that the objector held the property on her own account. 6. The evidential burden, however, may shift once the Objector places before the Court credible and cogent evidence demonstrating ownership. In Paul M. Munyao & 2 Others v Civicon Limited (Judgment Debtor); AEA Limited & Another (Objectors) [2021] eKLR, the Court observed that an objector is expected to produce strong evidence of ownership sufficient to rebut the prima facie presumption that goods in the possession of the judgment debtor belong to him or her. The Court must therefore examine each category of property and determine whether the Objector has discharged that burden. 7. The Objector produced a copy of the title deed for land parcel No. WAITALUK/KAPKOI BLOCK 6/KIMOSON/427. The title indicates that the registered proprietors are Catherine Nanjala Wekesa, Newton Munialo (Minor) and Ignatius Kuloba (Minor). The judgment debtor is not shown as a registered proprietor. The Claimant has alleged that the title does not constitute proof of ownership and has further that the objector ought to produce the roots of the title. However, no independent evidence has been placed before the Court demonstrating that the title is fraudulent, forged, cancelled or otherwise invalid. 8. More importantly, the land does not appear to have been among the movable properties proclaimed under the execution proceedings presently before the Court. The Court therefore finds no proper basis upon which execution under the warrants in issue can extend to that land. Accordingly, to the extent that the Claimant might seeks to execute against the said parcel of land in satisfaction of the decree against the judgment debtor, there is no basis for doing so on the material presently before the Court. The issue of matrimonial property does not arise for determination in these objection proceedings, particularly in the absence of evidence that the land was attached in execution. 9. The Objector has listed 29 items which she states were attached and removed from her premises. She has, however, produced documentary evidence relating to only a portion of those goods. I have considered the receipts exhibited by the Objector, including the receipt from Royal Mart relating to the Conic cooker and receipts relating to the Vitron 65-inch Smart TV, Ramtons 25L Microwave/Grill, Mika washing machine, Ramtons kettle, Ramtons cooker, general goods and Lenovo ThinkPad X13. Save for the receipt relating to the Ramtons cooker, the receipts bear the Objector's names. These documents constitute direct documentary evidence connecting the Objector to the acquisition of the particular goods. 10. The Claimant has challenged the authenticity and probative value of the receipts. However, apart from raising doubts and pointing out alleged inconsistencies, the Claimant has not placed before the Court independent evidence establishing that the said receipts are forged or that the goods described therein were purchased by the judgment debtor. The Court must nevertheless distinguish between goods for which ownership has been demonstrated and those for which no sufficient evidence of ownership has been produced. The fact that the Objector and the judgment debtor reside together does not, without more, establish that every item found within their common household belongs to the judgment debtor. Equally, the mere assertion by the Objector that all the household goods belong to her is insufficient to discharge the burden of proof in respect of each item. 11. I therefore find that the Objector has satisfactorily demonstrated a legal or equitable interest in the particular goods in respect of which she has produced credible documentary evidence linking her to their acquisition. As regards the remaining goods for which no satisfactory evidence of ownership has been produced, the Court is unable, on the evidence before it, to conclude that they belong exclusively to the Objector. The burden of proof rests upon her and cannot be discharged merely by asserting ownership. 12. It follows that the objection succeeds only to the extent that the Objector has established ownership of the particular goods supported by credible documentary evidence. The Claimant remains entitled to pursue execution against property belonging to the judgment debtor. Each party shall bear its own costs. Ruling signed and delivered in Eldoret this 21st day of August, 2026 M.E Aligula – RM In the presence of: C/A Mr. Lepatoiye