[2020] KEHC 9354 (KLR)
The court found that the transfer of the house from the 1st judgment debtor to the objector was a deliberate effort to defeat the attachment process, as the attachment had been ongoing for two years and the objector is the wife of the 1st judgment debtor. The objector failed to provide evidence to prove any legal or...
Source-derived case information.
- Citation
- [2020] KEHC 9354 (KLR)
- Parties
- Applicant: Peer Mwangi Gathogo T/A Daystar Auctioneers; Applicant: J.M. Njenga & Co. Advocates; Respondent: Francis Chege Maina; Respondent: Joseph Macharia Maina; Respondent: James Kihara Maina; Respondent: Dedan Muthaiga Maina; Applicant: Phillian Waithira Ng’ang’a
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Cause 119 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Objection to Attachment and Application for Police Assistance
- Outcome
- Objection dismissed; auctioneer's application allowed.
- Judges
- AO Muchelule
- Legal Topics
- Attachment of Property, Execution of Decree, Objector Proceedings, Transfer of Property to Defeat Creditors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peer Mwangi Gathogo T/A Daystar Auctioneers
Applicant
J.M. Njenga & Co. Advocates
Applicant
Francis Chege Maina
Respondent
Joseph Macharia Maina
Respondent
James Kihara Maina
Respondent
Dedan Muthaiga Maina
Respondent
Phillian Waithira Ng’ang’a
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Objection to Attachment and Application for Police Assistance
Legal Issues
- 1 Whether the objector Phillian Waithira Ng’ang’a has a legal or equitable interest in the attached goods sufficient to prevent attachment.
- 2 Whether the transfer of the house to the objector was intended to defeat the attachment process.
- 3 Whether the auctioneer should be granted police assistance to effect attachment.
Ratio Decidendi
The court found that the transfer of the house from the 1st judgment debtor to the objector was a deliberate effort to defeat the attachment process, as the attachment had been ongoing for two years and the objector is the wife of the 1st judgment debtor. The objector failed to provide evidence to prove any legal or equitable interest in the attached goods. Therefore, her objection could not be sustained. The auctioneer's application for police assistance was allowed, and the objections by the objector were dismissed with costs.
Court Disposition
Objection dismissed; auctioneer's application allowed.
Orders
- The auctioneer's application dated 27th January 2020 is allowed.
- The objections dated 16th January 2020 and 27th January 2020 are dismissed with costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
MISC. CAUSE NO. 119 OF 2015
PEER MWANGI GATHOGO
T/A DAYSTAR AUCTIONEERS..............................................................APPLICANT
J.M. NJENGA & CO. ADVOCATES...............................ADVOCATE/APPLICANT
VERSUS
FRANCIS CHEGE MAINA.............1ST RESPONDENT/JUDGMENT DEBTOR
JOSEPH MACHARIA MAINA.......2NDRESPONDENT/JUDGMENT DEBTOR
JAMES KIHARA MAINA...............3RD RESPONDENT/JUDGMENT DEBTOR
DEDAN MUTHAIGA MAINA........4THRESPONDENT/JUDGMENT DEBTOR
AND
PHILLIAN WAITHIRA NG’ANG’A..........................OBJECTOR/APPLICANT
RULING
1. On 28th November 2019 the court entered a judgment in the sum of Kshs.14,023,394/96 in favour of J.M. Njenga & Co. Advocates against the respondents/judgment debtors Francis Chege Maina, Joseph Macharia Maina, James Kihara Maina and Dedan Muthaiga Maina jointly and severally. A decree was extracted, but the debt remains not settled.
2. The judgment creditor instructed Peter Mwangi Gathogo T/a Daystar Auctioneers to go and attach the properties of the 1st, 2nd and 3rd judgment debtors. On 13th January 2020 the auctioneer, armed with warrants of attachment and sale, proclaimed the 2nd judgment debtor’s goods at his house at Thome Estate, the 1st judgment debtor’s goods at New Muthaiga Estate and the 3rd judgment debtor’s goods at Kandara Villas at Kileleshwa. On 21st January 2020, and upon the expiry of the notice, the auctioneer went to the house of each of the three judgment debtors to attach the goods but, in each house, he was denied access. He found the houses guarded by security guards with instructions not to let him in. On 27th January 2020 he came to court seeking that I order that he be accompanied by police officers to maintain law and order as he proceeds to attach the proclaimed goods.
3. The objector Phillian Waithira Ng’ang’a states that the items that were proclaimed in the alleged house of the 1st judgment debtor Francis Chege Maina were in fact not his but were hers. Her case is that the house in which the goods were found was hers, her being the registered owner of the house since 28th February 2019. She claimed both the house and the goods, and stated that she was not party to the suit and debt and therefore her property could not be attached in settlement. Her motion of objection to the attachment was brought under Order 22 rule 52of theCivil Procedure Rules.
4. There is no dispute that the objector is the wife of the 1st judgment debtor. Both stay in the house in which the goods proclaimed were found. From the record this was not the first time the auctioneer has been to his house to attach in respect of this debt. Attachment has been going on for the last two years. It is clear that the house belonged to the 1st judgment debtor till it was transferred to the objector on 28th February 2019. I find that the transfer was a deliberate effort intended to defeat any attachment process against the house and the goods therein. Secondly, the objector did not provide any evidence to prove, on the balance of probabilities, that she had any legal or equitable interest in the attached goods (Njeru Kaburu –v- Germano Mugereka [2019]eKLR). It is for these reasons that I will not allow the objection.
5. The 2nd and 3rd judgment debtors did not oppose the auctioneer’s application.
6. In conclusion therefore, I allow the auctioneer’s application dated 27th January 2020, and dismiss with costs the objections dated 16th January 2020 and 27th January 2020.
DATED and DELIVERED at NAIROBI this 19TH FEBRUARY 2020.
A.O. MUCHELULE
JUDGE