https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6977

**REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI COMMERCIAL AND TAX DIVISION – MILIMANI** **HCCOMM ARB E068 OF 2022** **VESL TECHNOLOGIES LIMITED................DECREE HOLDER/RESPONDENT VERSUS LINKSOFT INTEGRATED SERVICES (E.A) LIMITED......JUDGMENT DEBTOR AND ROSE OF SHARON ACADEMY LIMITED.................OBJECTOR/APPLICANT** **RULING** **Introduction** 1. Before this Court is the Objector’s Notice of Motion dated 4th September 2025, brought under Order 22 Rules 51, 52, and 53 of the Civil Procedure Rules by **Rose of Sharon Academy Limited** (the Objector/Applicant). 2. The Applicant seeks to restrain the Decree Holder and **Mbusera Auctioneers** from attaching or disposing of movable property proclaimed on 1st September 2025, claiming that the assets belong to them and not the Judgment Debtor - **Linksoft Integrated Services (E.A) Limited.** 3. The application is supported by the affidavit sworn on 4th September 2025, **Anthony Wahome Githinji**, who avers that the attached goods belong to the Objector and that the Objector is a tenant at 3rd Floor - Methodist Ministries Centre, Lavington, where the proclamation was carried out. 4. The application is opposed by the Decree Holder through a Replying Affidavit sworn on 15th September 2025 by **Vijay Beehary**, who maintains that the Objector has failed to demonstrate any legal or equitable interest in the attached goods and that execution was lawfully undertaken pursuant to a valid decree. 5. The application was canvassed by way of written submissions. The Respondent/Decree Holder filed submissions dated 1st November 2025, whilst no submissions were filed on behalf of the Applicant/Objector. **Analysis and Determination** 1. The Court has duly considered the pleadings and submissions on record. The sole issue for determination is whether the Objector has established a legal or equitable interest in the attached property so as to warrant lifting or setting aside the attachment. 2. From the pleadings, the Court notes that the matter arises from an **Arbitral Award dated 1st April 2020**, which was recognized for enforcement by this Court on 3rd July 2025. Following this, a decree was extracted against **Linksoft Integrated Services (E.A) Limited** for USD 2,222,211.70, Rupees 185,256, and KShs. 14,378,144.42. 3. On 1st September 2025, **Mbusera Auctioneers**, on instructions from the Decree Holder, proclaimed several office items—including reception desks, filing cabinets, and office electronics—at the Methodist Ministries Centre, Lavington. 4. The Applicant contends that the proclaimed goods are their chattels and that they are the lawful tenants of the premises at the Methodist Ministries Centre. Through the supporting affidavit of Mr. Githinji (who is also a director of the Judgment Debtor), the Applicant argues that the Judgment Debtor is a separate legal entity and that the Auctioneer failed to conduct due diligence to ascertain the ownership of the property at the site. 5. The Decree Holder (**VESL Technologies Limited**), on the other hand, opposed the application, arguing that the Objector has failed to discharge the burden of proving ownership. Specifically, they challenge the Applicant's evidence, noting that the Objector did not execute a Letter of Offer from the Methodist Church (**Annexure AWG-3**) and that a produced cheque does not establish a clear link to the specific movable properties attached. 6. What this Court is then called upon to decide is whether, based on the material presented by the Objector, a legal or equitable interest in the attached property as required under **Order 22 Rule 51(1)** of the Civil Procedure Rules. 7. The Legal framework governing Objector Proceedings in Kenya is principally under Order 22, Rules 51 to 55 of the Civil Procedure Rules. Rule 51 (1) provides as follows: “(1) 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. (2) Such notice shall be accompanied by an application supported by affidavit and shall set out in brief the nature of the claim which such objector or person makes to the whole or portion of the property attached.” 1. From the above provision of the law, it is clear that the onus is on the Objector to prove they have a valid claim to the property. The Objector must prove legal or equitable interest in the attached goods and generally demonstrate, on a balance of probabilities, that the goods are not the property of the Judgment Debtor. 2. In **Duncan Kabui v Samuel Bede Ogembo & Another [2014] eKLR**, the Court held that mere assertions or unsubstantiated documents are insufficient to establish ownership, and that credible evidence of title or proprietary interest must be provided. The Court (Nyamweya J – as she then was), concluded as follows: - 3. It is my finding that the Objector has not brought any evidence of any title or document of ownership to the motor vehicles that are the subject of the proclamation of attachment, and that she has not discharged her onus of proving her legal interest in the said motor vehicles. The sale agreement produced as evidence by the Objector of the purchase of the said motor vehicles cannot on its own be evidence of any legal interest in the said motor vehicles. In addition, a sale agreement without any proof of consideration paid is only proof of an intention to sell and not of a binding contract. Likewise, an equitable interest in the said property can only arise upon proof of payment made pursuant to the said sale agreement, and the Objector did not provide proof of any such payments made or consideration she had given pursuant to the said sale agreement. 4. In the present case, while the Applicant asserts separate corporate identities, the Decree Holder highlights inconsistencies in the documentation provided to prove ownership of the specific chattels. 5. The Court notes that the Objector’s case is premised on the assertion that it is a tenant occupying the premises where the proclaimed goods were found and that the goods belong to it. To support this claim, the Objector relied on a letter of offer allegedly evidencing tenancy and a cheque said to demonstrate payment. 6. However, upon scrutiny, the Court notes several deficiencies; the Objector has not produced any documentary evidence, such as purchase receipts, invoices, delivery notes, or asset registers linking it to the attached goods. The proclamation lists office furniture and equipment, yet no ownership documents have been tendered. 7. Further, the letter of offer dated 10th November 2022 relied upon by the Objector is not executed by the purported parties and is therefore of doubtful probative value. Additionally, the production of a cheque, without corresponding bank statements or proof of payment, does not establish tenancy or ownership. 8. In any event, even assuming tenancy, mere occupation of premises does not automatically confer ownership of goods found therein. Consequently, the Court agrees with the Decree Holder’s submissions that the Objector has not provided a clear title or conclusive proof of purchase for the items listed in the proclamation. 9. The Judgment Debtor deponed to financial inability to satisfy the decree and attached audited accounts showing declining performance. However, it is settled law that financial incapacity is irrelevant in determining ownership of attached goods. Objector proceedings are strictly concerned with proprietary interest, not the debtor’s ability to pay. 10. In the premises, the Court finds that the Objector’s Notice of Motion and Notice of Objection dated 4th September 2025 are devoid of merit. Accordingly, the Court orders: 11. The Notice of Objection and Notice of Motion dated 4th September 2025 are hereby dismissed. 12. The attachment and execution process shall proceed. 13. The Objector shall bear the costs of the application, which is hereby assessed at Kshs. 50,000/= 14. It is so ordered. **DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 14TH DAY OF MAY 2026** **** **HON. MR. JUSTICE MOSES ADO *Judge of the High Court*** **In the Presence of:** *Moses C/A* *Mr. Rweya…………………for the Applicant/Objector* *Gekonge h/b for Nyaanga……………for the Decree Holder/Respondent* *Wasike……………..for the Judgment Debtor*