[2018] KEHC 952 (KLR)
The court found that the objector/applicant had sufficiently demonstrated ownership of the motor vehicles KBH 206V and KBR 231F by producing logbooks in her name, thereby establishing her legal interest in those vehicles. However, the court noted that the receipts for the household goods were not accompanied by ETR...
Source-derived case information.
- Citation
- [2018] KEHC 952 (KLR)
- Parties
- Applicant: Jesca Taaka Wanyonyi; Respondent: Stephen Otieno Gwer; Defendant: Charles Momanyi Mageto; Defendant: Charles Bukhala Bulemi
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 114 of 2008
- Procedural Posture
- Objection Proceedings / Ruling on Notice of Motion Seeking Release of Attached Property
- Outcome
- Objection allowed in part; attachment of motor vehicles lifted; each party to bear own costs.
- Judges
- TW Cherere
- Legal Topics
- Execution of Decrees, Attachment of Property, Burden of Proof in Objection, Ownership of Attached Goods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jesca Taaka Wanyonyi
Applicant
Stephen Otieno Gwer
Respondent
Charles Momanyi Mageto
Defendant
Charles Bukhala Bulemi
Defendant
Procedural Posture
Objection Proceedings / Ruling on Notice of Motion Seeking Release of Attached Property
Legal Issues
- 1 Whether the objector/applicant has proved legal or equitable interest in the attached property to warrant lifting of the attachment.
- 2 Whether the attached motor vehicles and household goods belong to the objector/applicant.
Ratio Decidendi
The court found that the objector/applicant had sufficiently demonstrated ownership of the motor vehicles KBH 206V and KBR 231F by producing logbooks in her name, thereby establishing her legal interest in those vehicles. However, the court noted that the receipts for the household goods were not accompanied by ETR receipts, which are important documents of ownership, and the objector conceded she did not reside at the premises from which the household goods were attached. Consequently, the court allowed the objection only in respect of the motor vehicles and lifted their attachment, but did not grant release of the household goods. Each party was ordered to bear its own costs.
Court Disposition
Objection allowed in part; attachment of motor vehicles lifted; each party to bear own costs.
Orders
- Motor vehicles KBH 206V and KBR 231F belong to the objector and their attachment is lifted.
- Each party shall bear its own costs.
Full Case Text
Judgment text and source record
49 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE-J)
CIVIL CASE NO. 114 OF 2008
BETWEEN
STEPHEN OTIENO GWER..................................................PLAINTIFF/RESPONDENT
AND
CHARLES MOMANYI MAGETO............1ST DEFENDANT/JUDGEMENT DEBTOR
CHARLES BUKHALA BULEMI.............2ND DEFENDANT/JUDGEMENT DEBTOR
AND
IN THE MATTER OF OBJECTION
BETWEEN
JESCA TAAKA WANYONYI..................................................OBJECTOR/APPLICANT
AND
STEPHEN OTIENO GWER.................................................PLAINTIFF/RESPONDENT
RULING
Background
1. The Plaintiff/Respondent filed a claim for damages and upon obtaining judgment against the defendants/respondents applied for execution by an application for execution filed on 10th November, 2017.
2. On 13th November, 2017, the Plaintiff/Respondent issued with warrants of attachment of movable property in execution of decree for money and warrants of sale of property in execution of decree for money.
Application
3. On 17th November, 2017, the Objector/Applicant filed a notice of objection. Simultaneously with the notice of objection, the Objector/Applicant filed notice of motion dated under Order 42 Rule 6 (1) and (2) and Order 51 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act seeking orders 5 orders. Three of the prayers have been spent. The remaining two prayers seek orders THAT:-
a. The Honourable Court be pleased to order the unconditional release of properties by the auctioneer to the objector/applicant
b. Costs of this application be provided for
4. The application is based on the grounds among others that the objector/applicant is the bonafide owner of the attached motor vehicles KBH 206V and KBR 231F; Sony TV, home theatre, one glass table, one dining table with 6 chairs, 15 plastic chairs, water dispensers, Samsung TV and 80 plastic chairs.
5. The application is supported by an affidavit sworn by the objector/applicant on 17th November, 2018 in which she reiterates the grounds on the face of the application. Annexed to the affidavit is a Proclamation Notice; logbooks for motor vehicles KBR 215 F an KBH 206V, receipt for 200 plastic chairs; receipt for seven seater sofa set; glass table and 7 seats and receipt for Sony TV, Sony Home Theatre, Ramtons water dispenser and Samsung TV marked JTW 1, 2 (a) to respectively.
6. The application is opposed on the basis of a replying affidavit sworn by the plaintiff/respondent on 22. 11. 18. He avers that the receipts in support of are not accompanied by ETR receipts and are therefore false documents procured to support these objection proceedings.
Cross-examination of the objector
7. At the hearing of the objection proceedings, the plaintiff/respondent sought to cross-examine the objector. The objector in cross-examination told court that:
i. She lives at Riat and not in Milimani Estate in Kisumu
ii. That the 1st Defendant/Judgement Debtor is her husband
iii. That the 1st Defendant/Judgement Debtor has a home in Milimani Estate in Kisumu and that she has never lived in that home
iv. That the goods were proclaimed in her absence
Analysis and determination
8. The law is clear; under Order 22 rule 51(1) of the Civil Procedure Rules that:
Any person claiming to be entitled to or to have a legal or 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 the attachment of such property.
9. The objector bears the burden of proving that she is entitled to or has legal or equitable interest on the whole or part of the attached property.
10. The applicant/objector’s claim over motor vehicle KBH 206V and KBR 231F has been demonstrated by copies of logbooks which are in her name. I however note that receipts for household goods are not accompanied by ETR Receipts which are important document of ownership. Further to the foregoing, the objector has conceded that she does not live in Milimani Estate from where the household goods were attached.
DISPOSITION
11. Consequently, the notice of motion dated 29. 6.18 is considered and is allowed on the following terms: -
a. Motorvehicles KBH 206V and KBR 231Fbelong to the objector and their attachment is accordingly lifted.
b. Each party shall bear its own costs
DATED AND DATED IN KISUMU THIS20TH DAY OF DECEMBER 2018
T. W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant -Felix
For Objector/Applicant -N/A
Forplaintiff/respondents - Mr Otieno
For Defendants/Respondents -N/A