https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10458

Upperhill Complex Ltd v Haji & another (Civil Appeal E225 of 2025) [2026] KEHC 10458 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10458 (KLR) Republic of Kenya In the High Court at Eldoret Civil Appeal E225 of 2025 JM Chigiti, J July 10, 2026 Between Upperhill Complex Limited Appellant and Fatuma Yussuf Haji 1st Respondent Dadrac Limited 2nd Respondent Judgment 1.Following a road traffic accident involving motor vehicle Reg No. KC 296V,that occurred on 3.1.25 the Appellant filed a suit vide Eldoret Sccc No. E190 Of 2025 Upper Hill Complex Limited Vs Fatuma Yussuf Haji and obtained an exparte judgement against on 22.04.2025 for a sum of Kshs.1,075,794.14/=. 2.Upon judgment being delivered, the Appellant proceeded to issue instructions to Eshikoni Auctioneers who proceeded to attach the 2nd Respondent's motor vehicle Reg. No. KCL 296V. 3.This triggered the 2nd Respondent to file an application objecting to the attachment who argued that the proclaimed motor vehicle Reg. No. KCL 296V belonged to it. 4.To support its case the Appellant relied on an NTSA motor vehicle search to prove that the vehicle belonged to the 1st Respondent which showed that the 1st Respondent was the sole owner of the suit motor vehicle. 5.The case proceeded to hearing while the 1st respondent herein transferred the vehicle to a third party, the 2nd respondent to defeat execution. 6.Such a transfer according to it is presumptively void since it is intended to thwart a decree that would flow from the judgment. 7.The Respondent's application for a stay of execution after judgment was therefore unfounded, and in the primary court granting the stay, it greatly prejudiced the Appellant denying it the legitimately awarded judgment. 8.This Appeal challenges the ruling that was delivered on 29th August 2025, which upheld the 2nd Respondents' objection to the attachment of Motor Vehicle Registration Number KCL 296V. The Appellants submissions; 9.According to the appellant, The Learned Magistrate misapprehended the evidence on record, failed to consider the Appellant's submissions, and placed undue reliance on unsupported assertions advanced by the Respondents. 10.It is the appellant’s case that the motor vehicle was transferred to the 2nd Respondents in order to evade liability. 11.It is the Appellant’s case that the trial court fell into error in failing to consider the fact that the 2nd Respondent did not prove ownership of the vehicle. 12.It is its case that the transfer was affected for purposes of defeating justice and denying the Appellant the fruits of the judgment. 13.It submits that the trial court fell into error by failing to consider and analyze the appellant’s pleadings and evidence around the issue of ownership of the concerned motor vehicle. 14.It argues that the trial court did not consider the appellant’s evidence. This can be seen from the fact that no reference was made to the appellant’s evidence. 15.It submits that there is no reasoning whatsoever in the ruling, leaving the appellant with a conclusion that the trial court laid more emphasis on the respondent’s case without any justification whatsoever. 16.It is concerned because the trial court made no finding or determination on the weighty issue that the appellant had advanced around the legal effect and consequences of the lack of authority to swear an affidavit for a company.According to the appellant, this occasion, a misdirection in the Law. 17.According to the appellant, this court should set aside the order because the trial court failed to consider this evidence and arrived at a decision that was not supported by evidence whatsoever. The respondent’s case; 18.According to the respondent, the appeal lacks merit and it should be struck out with costs. 19.Reliance is placed in Order 22 Rule 5(1) of the Civil Procedure Rules provides that;“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. 20.In the case Arun v C. Sharma Astana Raikundaha t/a Raikundaha & Co. Advocates & 4 others [2014] as quoted in the case of Obadhav Omoro (Civil Case E014 of 2021) [2022] KEHC 332 (KLR) (4 May 2022) (Judgment) the Court stated that; -“The objector bears the burden of proving that he is entitled to or has legal or equitable interest on the whole or part of the attached property. The key words are, entitled or to have a legal or equitable interest in the whole or part of the property." 21.It is the 2nd respondent’s case that motor vehicle registration number KCL 296VZE6497 belonged to it on 27th of January 2025. 22.It is further the 2nd respondent’s case that it was not a party to the primary Suit. No judgment was issued against it and attaching its motor vehicle amounts to an illegality. 23.The 2nd defendant submits that it is different from the 1st respondent. 24.Reliance is placed in the case of Salomon & CO LTD v Salomon [1897] A.C.22 H.L the court held that;“that a company is a different person altogether from its subscribers and directors. Although it is a fiction of the law, it still is as important for all purposes and intents in any proceedings where a company is involved. Needless to say, that separate legal personality of a company can never be departed from except in instances where the statute or the law provides for the lifting of piercing of the corporate veil, say when the directors or members of the company are using the company as a vehicle to commit fraud or other criminal activities.” 25.Section 8 of the Traffic Act is very clear that the person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle. 26.It submits that it adduced enough evidence to confirm being the owner of the said motor vehicle through the Certificates of Motor Vehicle Reg. No. KCI 296V and trailer Reg. No. ZE6497. 27.On another front, it submits that the affidavit in support of its application was sworn by a director of the 2nd respondent on behalf of the company and that this is not illegal. 28.The respondent submits that the appeal should be dismissed with costs.AnalysisThe issues for determination are;1.Whether the appeal has merit.2.Who shall be the costs. 29.In Njoroge v Gakere & another (Civil Appeal E028 of 2024) [20251 KEHC 4048 (KLR)t Justice Maureen Odero in reiterating the role of an appellate court in a first appeal by referring to the case of SELLE and Another -vs- Associated Motor Boat Company Ltd & Others [19681 1. E.A 123 it was stated as follows:-"“this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind [the fact] that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge's findings of fact if it appears that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.” 30.On the issue of lack of authority to swear an affidavit, this court finds that the ground lacks merit. A company can ratify what is done by an agent even after the event. 31.In so finding, the court is guided by the following authorities; Paragon Electronics Limited v Njeri Kariuki [2021] eKLR;“There is no necessity in law that the resolution must be filed together with the pleadings. Looking at it differently, to require the filing of a resolution alongside the pleading is to elevate procedural technicalities above substantive justice. That goes against the grain in Article 159(2)(d) of the Constitution.”Kenya Agricultural and Livestock Research Organization v Okoko & another (Civil Appeal 36 A of 2021) [2022] KEHC 3302 (KLR) (29 June 2022) applied the dicta in the following decisions:East African Safari Air Ltd v Anthony Ambaka Kegode [2011] eKLR where the Court of Appeal overturned the high court decision [applied by the 3rd Respondent) and held that the proper thing for the High Court to have done was not to strike out the proceedings (for want of authority by the advocate to file suit) but to stay the suit and refer to the shareholders for ratification.Assia Pharmaceuticals v Nairobi Veterinary Centre Ltd. Nairobi (Milimani) HCCC no 391 of 2000: As regards litigation by an incorporated company, the directors are as a rule, the persons who have the authority to act for the company.Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] eKLR; The Court of Appeal cited the case of United Assurance coLtd v Attorney General: SCCA no 1 of 1998 where the Supreme Court of Uganda held that:“…it was now settled, as the law, that, it does not require a board of directors, or even the general meeting of members, to sit and resolve to instruct Counsel to file proceedings on behalf and in the names of the Company. Any director, who is authorized to act on behalf of the company, unless the contrary is shown, has the powers of the board to act on behalf of that Company.”East African Safari Air Limited v Anthony Ambaka Kegode & another [2011] eKLR. The Court of Appeal held: Cordery’s Law Relating to Solicitor states that:“Proceedings will not be set aside because the solicitor acted without authority, if the party on whose behalf they were taken adopts what has been done, but ratification of an agent’s act can only be effective where, at the time of the act, the principal was himself competent to perform it, or to authorize its performance, and a plaintiff cannot so adopt an action after having apparently repudiated it to the defendant.” 32.The court has reviewed and reanalyzed the claim, the evidence and the proceedings as well as the impugned ruling and noted that as at the time the claim was filed, the motor vehicle was owned by the 1st respondent. This can be seen from the log book or the Ntsa records. 33.By the time the judgment was entered the ownership of the vehicle had moved from the 1st Respondent to the objector as demonstrated by the subsequent Ntsa logbook. 34.It is clear to this court that the change of the ownership took place during the pendency of the claim so as to defeat the appellant’s claim. 35.The 2nd Respondent did not explain how the car was transfered to it. 36.Section 8 of the Traffic Act is very clear that the person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle. 37.In the case of Chotabhai M. Patel v Chaprabhi Patel [1958] EA 743, it was held that;a.Where an objection is made to the attachment of any property attached in execution of a decree on the ground that such property is not liable to attachment the court shall proceed to investigate the objection with the like power as regards examination of the Objector, and in all other respects as if he was party to the suit.b.The Objector shall adduce evidence to show that at the date of attachment he had some interest in the property attached.c.The question to be decided is, whether on the date of attachment, the Judgment Debtor or the Objector was in possession, or where the court is satisfied that the property was in the possession of the Objector, it must be found whether he held it on his own account or in trust for the Judgment Debtor. The sole question to be investigated is, thus, one of possession of, and some interest in the property.d.Questions of legal right and title are not relevant except so far as they may affect the decision as to whether the possession is on account of or in trust for the Judgment Debtor or some other person. To that extent the title may be part of the inquiry. 38.The 2nd Respondent had the obligation and duty to explain the change of ownership of the motor vehicle in this case so as to dislodge, the presumption that the transfer was not effected in a calculated or choreographed strategy that was aimed at hiding the attachable assets of the 1st Respondent. 39.The court is of the view that the transfer was done with a view to shield the vehicle from the impeding execution process. 40.In the case of Nesco Services Limited v CM Construction [EA] Limited [2021] eKLR, Justice Odunga J as he then was stated as doth: -“Since the said author was for reasons unknown to the Court not called to testify and dispute its authenticity, adverse inference could be made thereon. In Kenya Akiba Micro Financing Limited vs. Ezekiel Chebii & 14 others [2012] eKLR the court stated as follows:“Section 112 of the Evidence Act Chapter 80 of the laws of Kenya provides:“In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proofing of disproving that fact is upon him.’ 41.Where a party has custody or is in control of evidence that that party fails or refuses to tender or produce, the court is entitled to make an adverse inference that if such evidence was produced, it would be adverse to such a party. In the case of Kimotho –vs- KCB (2003) 1 EA 108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.” 42.The easiest way for the 2nd Respondent to prove legitimate ownership of the car would have been by the production of a sale agreement and a transfer form. This was not done. 43.The logbooks create a presumption that the car belongs to the person in whose name it is registered. It is my finding and I so hold that the objector failed to demonstrate that the transfer was legitimately done. 44.The court is of the view that anybody who has evidence that is tangible and that is useful for the case, but refuses to furnish the court with it does so with a fear that such evidence would be detrimental to their case. Such is the case for the 2nd Respondent herein. 45.The court is of the informed view that the objector failed to demonstrate that it was the legitimate owner of the said motor vehicle. 46.The Certificates of Motor Vehicle Reg. No. KCI 296V and trailer Reg. No. ZE6497 cannot come to the 2nd Respondent's aid in the circumstances. 47.Section 44(1)(ii) of the Civil Procedure Act which provides as follows:All property belonging to a judgment debtor, including property over which or over the profits of which he has a disposing power which he may exercise for his own benefit, whether that property is held in his name or in the name of another but on his behalf, shall be liable to attachment and sale in execution of a decree. 48.The appellant has proven that the trial court erred in arriving at the impugned ruling. Costs; 49.In the case of Republic vs Rosemary Wairimu Munene, Ex-Parte Applicant vs Ihururu Dairy Farmers Cooperative Society Ltd Judicial Review application no 6 of 2014 where the court held as follows: -“The issue of costs is the discretion of the court as provided under the above section. The basic rule on attribution of costs is that costs follow the event....... It is well recognized that the principle costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case.” 50.The appellant is entitled to costs. Determination: 51.The appeal has merit.Order:The appeal is allowed with costs. DATED, SIGNED AND DELIVERED AT ELDORET THIS 10TH DAY OF JULY, 2026.……………………………….J. CHIGITI (SC)JUDGE