[2020] KECPT 121 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 835 OF 2016

TITUS KOCEYO.....................................CLAIMANT

VERSUS

EDDIE AMADI.................................RESPONDENT

RULING

Vide the Application dated 23/7/2019, the objector has moved this Tribunal seeking for orders inter alia;-

a. That this Tribunal be pleased to set aside and lift Notification of Sale and Warrant of Attachment of the objector’s property; and

b. Costs.

The Application is supported by the grounds of it’s face and Affidavit of Francis Kadima Mulama Osundwasworn on even date. It is further founded on the Notice of objection of even date.

The graveman of the Objector in the Application is that the Judgment Creditor has attached/proclaimed his office furniture and equipment and that the Judgment Debtor has no claim over them. That the Judgment Debtor is his sub-lessee. That the Judgment Debtor has been sharing furniture and office equipment with his firm since March, 2019 for a rental fee. That by the time the Judgment Debtor moved into the office, his firm had already furnished the office with the items sought to be attached. That the Lease Agreement for the said office is between his firm and Kedong Ranch Ltd. That he is the one who pays rent for the said office.

Decree - Holder’s Case

The Decree Holder has opposed the Application vide the Replying Affidavit sworn by himself on 10/8/2019. Vide the said response, the Decree Holder contends that he has only attached the Judgment Debtor’s only known assets in the law firm he trades in being the firm of Amadi & Amadi Advocates, located in Office No. 11 Kedong, House, Lenana Road, Nairobi. That he had served previous court process in the said office.

That the Objector has not produced evidence to show the date when the Judgment Debtor moved into the said premises. Further, he contend that the objector has not exhibited the sub-tenancy agreement between him and the judgment debtor. That the Objector has not provided ownership of the goods attached. That the goods attached are from the Judgment Debtors known address. That the goods proclaimed belong to the Judgment Debtor as they were found in his office.

Disposal of the Application

Vide the directions given on 3/9/19, the Application was canvassed by way of Written Submissions. The Objector filed his on 25/9/2019 while the Claimant did so on 6/9/2019. We will consider the same whilst determining the issues raised by the Application.

Issues for determination

We have framed the following issues for determination

a. Whether the objector has laid a proper basis to warrant the lifting and/or setting aside the Notification of save and attachment of his property; and

b. Who would meet the costs of the Application.

Objector Proceedings

Objector proceedings are provided for under Order 22 Rules 51-55 of the Civil Procedure Rules, Order 51 Rule 1 provides thus;

“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 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.”

It thus follow that for one to found objection proceedings, he/she should demonstrate that at the time of attachment of the good, in question, he had a legal or equitable interest in the whole or the property attached in execution of the decree. This was the holding in the case of Stephen Kiprotich Koech –vs- Edwin K. Barchiles Joel Sitienei(Objector)[2019]eKLR.

In the pertinent, the court held thus:

“The core of objection proceedings, the objector must adduce evidence to show that at the date of the attachment, there was a legal and equitable interest in the property attached..”

In the case of Precast Portal Structures-vs-Kenya Pencil Co-Ltd & 2 Others [1993]eKLR – the court held thus:

“The burden is on the objector to prove and establish his right to have the attached property released from the attachment. On the evidential material before the court, a release from attachment may be made if the court is satisfied:-

1. That the property was not, when attached, held by the Judgment-debtor for himself, or by some other person in trust for the Judgment-debtor, or

2. That the objector holds that property on his own accounts.

Based on the foregoing, the question arises as to whether the Objector has established a legal and equitable interest in the whole or part of the property being attached. It is his contention that he is the owner of all the items attached by the Claimant. That he sub-leased the office space to the Judgment-Debtor from March, 2019 for a fee. That prior to the Judgment Debtor entering the sub-lease, he had fully furnished the office. He has annexed a copy of the lease Agreement between him and the landlord, Kedong Ranch Limited. He has also annexed receipts showing payment of rent to the landlord. The same are marked as annextures K-3 he has also produced a demand for rent arrears by the landlord dated 29/1/2019.

On his part, the Decree-Holder contends that he has followed the laid down procedure in executing his decree. That the Judgment- Debtor’s place of work is in the premise where the goods were proclaimed and attached. That the objector concedes that the Judgment-Debtor operate from the said premises. That in the circumstances the proclamation of the goods and equipment’s is legal.

We have considered the above contentions in light of the law above. From the material placed before us by the objector, we are satisfied that he has a legal and equitable interest in the property proclaimed and attached. The Lease Agreement exhibited as annexture K-1 clearly shows that the objector is the tenant of the premises from which the goods were attached. Secondly, the receipts exhibited show that he pays rent for the said premises. It follows therefore that he has a direct interest on the property contained in the suit premises.

Whilst the Decree-Holder has faulted the objector for not proving ownership of the proclaimed gods, we note that the said good are ordinary office equipment whose receipts may not ordinary be kept and/or retained by the owner. Suffice it to note that the lease for the said premises is between the objector and the landlord.

We have not seen material demonstrating that the judgment debtor owns or has an interest in the said properties.

Conclusion

In the premises, we find merit in the objector’s Application dated 23/7/19 and allow it with no Orders as to costs.

Ruling read, dated and delivered via email in accordance with the directions given by the Honourable , the Chief Justice on 15/3/2020, this 30th day of April, 2020.

Prepared by Hon. B. Kimemia – Chairman, Hon. F. Terer – Deputy Chairman and P. Gichuki – Member, with the consent of the parties.

The final orders to be delivered by email in accordance to the prevailing measures during the COVID-19.

Hon. B. Kimemia ...................

Chairman

Hon. F. Terer .......................

Deputy Chairman

P. Gichuki .........................

Member