[2022] KEHC 16181 (KLR)

Okerow v Onyango & another (Civil Appeal 30 of 2019) [2022] KEHC 16181 (KLR) (6 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16181 (KLR)

Republic of Kenya

In the High Court at Busia

Civil Appeal 30 of 2019

JR Karanja, J

December 6, 2022

Between

Gallicano Ngayour Okerow

Appellant

and

Stephen Ochieng Onyango

1st Respondent

Clement Apaka Okumu

2nd Respondent

(Arising from the judgement and Decree in Busia CMCC No 96 of 2011 delivered on June 12, 2012. )

Judgment

1. The appellant, Gallicano Ngayour Okerow, was the objector in Busia CMCC No 96 of 2011 in which the first respondent/plaintiff, Stephen Ochieng Onyango, sued the second respond/defendant, Clement Apaka Okumu, for a sum of Kshs 40,000/= (forty thousand) arising from agreements for the sale and purchase of a portion of land situated at Chengo market described as plot No 5. Whereas the plaintiff was the purchaser, the defendant was the vendor.

2. After a full hearing of the matter before the learned Chief Magistrate at Busia, judgment was delivered on June 12, 2012, in favour of the plaintiff/first respondent against the defendant/second respondent for the sum of Kshs 36,800/= inclusive of costs and interest.Thereafter, the plaintiff sought to execute the accruing decree against the defendant by way of attachment and sale of property belonging to the defendant. In the process, domestic animals (cows) allegedly belonging to the defendant/second respondent were attached for sale to recover the decretal amount.

3. Consequently, the appellant entered into the dispute as a third party/objector by filing a notice of objection dated August 6, 2012 as amended on September 5, 2012, objecting to attachment of his cow by the appointed auctioneer on the basis that the cow was solely his property and that he was not a party to the suit or dispute between the two respondents herein. The objection was heard interparties by the trial court which then rendered, its ruling on November 15, 2018, dismissing the objection with costs.

4. Being dissatisfied with the ruling, the objector/appellant effectively filed the present appeal on August 25, 2020 through Masinde & Co Advocates. The grounds of the appeal are set out in the memorandum of appeal dated November 19, 2019 and filed herein on the December 3, 2019. The hearing of the appeal proceeded before this court by way of written submission which were duly filed by the appellant through his aforementioned firm of advocates and by the first respondent through the firm of Manwari & Co Advocates.The second respondent did not file any submissions and appeared not to have participated in this appeal.

5. Be that as it may, the appeal was opposed by the first respondent.This court, gave due consideration to the appeal on the basis of its supporting grounds and the rival submissions for and against the appeal.Basically, the duty of this court as the first appellate court was to reconsider the evidence and facts presented before the trial court and draw its own conclusions bearing in mind that the trial court had the advantage of seeing and hearing the witnesses during the material objection proceedings.

6. In that regard, the objector’s case was briefly that his black and white grade cow was confiscated by Kuronya Auctioneers on the basis of a notification of sale in which the second appellant, (defendant) was the judgement debtor. The estimated value of the cow was Ksh 15000/= at the time, but considering the profit it brought, the value was estimated to be Ksh 75,000/=.

7. The objector (appellant) indicated that the cow was sold on August 6, 2012 at Kshs 19,000/=, that the cow was attached and sold as a result of a civil suit in which the appellant was not a party. He then wrote a letter to that effect after the appellant had raised a complaint against the auctioneers.

8. The judgment creditor or decree holder in the forementioned civil suit was the first respondent/plaintiff. He testified and confirmed that the second respondent was the defendant in that case which was determined in his favour. He contended that the property (cow) belonging to the second respondent was attached while in the appellant’s homestead where it was shifted impliedly by the judgment debtor/second respondent.

9. In effect, the first respondent suggested that the cow was shifted into the homestead of the appellant from the homestead of the second respondent for purposes of evading execution of the decree against the second respondent but all in vain, as the cow was traced and located at the appellant’s homestead where it was attached. It was the first respondent who pointed out the cow for attachment by the auctioneers.

10. The trial court considered all the foregoing factors and evidence and concluded in the ruling delivered on 15th November 2018 that the appellant’s objection as devoid of merit and was accordingly dismissed with costs.A fresh consideration of the evidence by this court reveals that indeed the appellant’s objection was unmerited essentially for want of proof of his ownership of the attached cow to the exclusion of any other person, in particular the judgement debtor/defendant/second respondent.

11. In essence, objection proceedings are instigated by a party aggrieved with the attachment of property which he deems to be his property rather than the property of the judgment debtor. Such proceedings are brought under order 22 rule 51 of the Civil Procedure Rules and are intended to establish the objector’s alleged ownership of the attached property to the exclusion of the judgment debtor or any other claimant for that matter.

12. Thus, under the aforementioned provision:-1. “Any person claiming to be entitled to or to have a legal or equitable interest in the whole of or part of any property attached in execution of a decree may at any time prior to payment out of the proceeds of the sale of such property give notice in writing to the Court and to all the parties and to the decree holder of his objection to the attachment of such property.2. Such notice shall be accompanied by an application supported by affidavit and shall set out in brief the nature of the claim which such objector or person makes to the whole or portion of the property attached”.

13. In the instant case, the evidence presented by the objector/appellant and his witnesses, the area assistant Chief (DW 2) did not establish and prove the objector’s alleged ownership of the attached cow.In the circumstances, the objection was rendered ineffective and invalid as against the Judgment creditor first respondent and remained just a mere allegation which could not be substantiated by any evidence from the appellant who thus failed to discharge his burden of proof on a burden of probabilities.

14. It would therefore follow that all the seven grounds of appeal proferred by the appellant together with the supporting submissions are lacking on merit and are hereby overruled and dismissed in favour of the first respondent’s opposition and submissions to the appeal which are hereby sustained and upheld.In sum, the appeal is hereby dismissed in its entirety with costs to the first respondent.Ordered accordingly.

DATED AND DELIVERED THIS 6TH DAY OF DECEMBER, 2022. JR KARANJAHJUDGE