[2018] KEHC 1831 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 696 OF 2016

PETER OCHIENG OWUOR......................................APPELLANT

-V E R S U S –

HIGH PRESSURE PLUMBING LIMITED....1ST RESPONDENT

EUROPEAN FOODS AFRICA LIMITED.....2ND RESPONDENT

(Being an appeal from the ruling and decision of Hon. E. Wanjala (Miss) SRM delivered on the 4th day of November, 2016 in Milimani CMCC No. 5481 of 203 )

JUDGEMENT

1) Peter Ochieng Owuor, the appellant herein, filed a compensatorysuit before the Chief Magistrate’s Court, Milimani againstHigh Pressure Plumbing Ltd,the 1strespondent herein, for the injuries he sustained while working for the 1strespondent as a welder and fitter on 30. 4.2013. The 1strespondent filed a defence to deny the appellant’s claim. At the end of the trial, judgement was entered in favour of the appellant and against the 1strespondent in the sum of ksh.253,000/= for both general and special damages.

2) The decree was extracted and executed by way of attachment ofthe goods allegedly belonging toEuropean Foods Africa Ltd, the 2ndrespondent herein. The 2ndrespondent filed objection proceedings vide the motion dated 25. 4.2016. Hon. E. Wanjala, learned Senior Resident Magistrate heard the motion and lifted the attachment on the basis that the goods attached belonged to the 2ndrespondent.

3) The appellant was aggrieved by the aforesaid decision, hence hepreferred this appeal and put forward the following grounds:

i. THAT the honourable Senior Resident Magistrate erred in law and fact by finding that the 2nd respondent was the legal owner of the proclaimed movable properties.

ii. THAT the honourable Senior Resident Magistrate erred in law and fact by finding that invoices produced by the 2nd respondent (objector) were proof of ownership of the proclaimed movable properties.

iii. THAT the honourable Senior Resident Magistrate erred in law and fact by finding that the appellant did not dispute the 2nd respondent’s (objector’s) alleged receipts (invoices) as proof of ownership contrary to express statements in the replying affidavit sworn and filed on 30th May, 2016 and written submissions filed on 24th August, 2016.

iv. THAT the honourable Senior Resident Magistrate erred in law and fact by failing to consider the appellant’s written submissions dated and filed on 24th August, 2016 together with judicial authorities attached thereto.

4) When the appeal came up for hearing, this court was promptedby the appellant’s advocate to give directions which were to the effect that the appeal be disposed of by written submissions. At the time of writing this judgment, the appellant was the only party who had filed his submissions.

5) I have re-evaluated the arguments made before the trial courtand considered the written submissions filed by the appellant. The record shows that, the 2ndrespondent argued before the trial court stating that the properties proclaimed by Moran Auctioneers on 20thApril 2016 belongs to it and that the 1strespondent does not have any legal or equitable interest over those properties. It was further argued by the 2ndrespondent that it is a separate legal entity from the 1strespondent.

6) The 2nd respondent also stated that it was not a party norprivy to the suit filed against the 1strespondent.

7) In response to the 2nd respondent’s arguments, the appellantstated that the 1stand 2ndrespondent companies shared a common director by the nameStephen Belzerand that the two companies share the same premises and same postal addresses. The appellant argued that for the above reasons the 1strespondent has equitable interest in the movable properties proclaimed by the auctioneer.

8) The learned Senior Resident Magistrate took into account thosearguments and came to the conclusion that the two companies are separate legal entities. She also came to the conclusion that the 2ndrespondent presented documents proving that it owned the assorted air conditioners which were proclaimed by the auctioneer.

9) On appeal, the appellant urged this court to set aside the orderwhich upheld the objection proceedings. The appellant pointed out that the 2ndrespondent failed to show how and when it acquired the premises known asCape Business Park Godownwhere the 1strespondent also operates.

10) The appellant also argued that the 2nd respondent merelytendered invoices instead of receipts to prove ownership of the air conditioning kits and the deep freezer. It was further pointed out that there was no proof of ownership of the generator attached.

11) Unfortunately the 2nd respondent did not file its writtensubmissions in response to those filed by the appellant.

12) It is not in dispute that Moran Auctioneers proclaimed movableproperty to wit.Assorted air conditioner, containers, generator, deep freezersand tools from the premises occupied by the 2ndrespondent known asCape Business Park Godown – D8, Thika Road. The appellant has argued that the 2ndrespondent has not shown when and how it acquired Cape Business Park Godown. With respect, I think such an argument cannot be entertained because the aforesaid premises were not attached, therefore the 2ndrespondent was not bound to disclose how it acquired the same.

13) The appellant has also complained that the 2nd respondent onlysupplied invoices instead of receipts as evidence of ownership of the goods attached. It is apparent from the averments contained in paragraph 6 of the affidavit of Mercy Cheruto filed in support of the 2ndrespondent’s motion that the 2ndrespondent attached invoices, a receipt and sales invoices as evidence of purchase and ownership of the goods attached by the auctioneer. None of those invoices or receipts is in the name of the 1strespondent.

14) The appellant failed to present any evidence to show that the 1strespondent is the owner or has a beneficial interest of the proclaimed goods. The appellant therefore failed to discharge the burden of proof.

15) In an attempt to discharge that burden, the appellant stated thatthe two companies share the same premises, address and directors. That in my view does not help the appellant’s case. The fact that two companies share the same directors, offices or address does not in itself make them one and the same company. The two companies remain separate legal and distinct entities.

16) The learned Senior Resident Magistrate therefore came to thecorrect decision that the 1stand 2ndrespondent are separate anddistinct legal entities.

17) In the end, I find no merit in this appeal. It is dismissed in itsentirety with costs being awarded to the 2ndrespondent.

Dated, Signed and Delivered in open court this 9th day of November, 2018.

J. K. SERGON

JUDGE

In the presence of:

.................................................... for the Appellant

................................................. for the Respondents