Precast Portal Structures V Kenya Pencil Company Ltd & 2 Others  EKLR
|Civil Case 969 of 1990||01 Dec 1993|
Richard Charles Namasaka Kuloba
High Court at Nairobi (Milimani Law Courts)
Precast Portal Structures v Kenya Pencil Company Ltd, Dilip M Patel & Livingstone Atebe Marita
Precast Portal Structures v Kenya Pencil Company Ltd & 2 others  eKLR
Precast Portal Structures v Kenya Pencil Company Ltd & 2 others
High Court, at Nairobi December 1, 1993
Civil Case No 969 of 1990
Civil Practice and Procedure – execution -attachment – application for raising of attachment – where judgment debtor sells suit land to objector after judgment is entered against judgment debtor in respect of the suit property, then claims he will suffer loss if application dismissed – whether the judgment debtor could be deemed to have an interest in the suit property – whether objection should be disallowed on this basis.
Civil Practice and Procedure – execution objection proceedings – release from attachment – factors Court considers for or against release of property from attachment.
This was application, brought by objectors seeking an order that the attachment made by the plaintiff on the property known as Nakuru Municipality Block 8/73 be raised and the prohibitory order registered against the title of the said plot be removed. The objector Mr Livingstone Atebe Marita said he bought the plot with Dilip Patel, in 1991 and obtained certificate of lease. He deponed therefore that the plot was wrongfully attached. On the other hand, Shantilal Shah, one of the directors of the plaintiff swore affidavit stating that the purported transfer of the property attached was not in good faith and was intended to defeat the anticipated decree against the defendant.
The judgment debtor contented that it had disposed off the plot, but nonetheless, further went on to state that if the plot was sold then the judgment debtor would suffer an irreparable loss.
1. The judgment - debtor’s claim that if the parcel of land were disposed off he would suffer irreparable loss, was unfounded since if it was time that the judgment - debtor company had sold the plot to other people, and it had no interest in the plot, then how was it to suffer irreparable loss by disposing what was no longer his.
2. A release from attachment may be made if the Court is satisfied 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 that the objector holds that property on his own account.
3. Where the Court is satisfied that ownership of the property changed whereby the judgment –debtor has been divested of the property in order to evade execution or the change is tainted with fraud, the court shall dismiss the objection.
4. The property was held on behalf of the judgment – debtor, or that it was sold in order to defeat the legal process, and that the objector was attempting knowingly to assist the judgment – debtor in the scheme. There was no bona fides in the transfer of leasehold from judgment debtor, only on paper.
No cases referred to
1. Civil Procedure Rules (cap 21 Sub Leg) order XXI rules 53, 57
2. Civil Procedure Act (cap 21) section 44
Mr Joshi for the Applicant
Mr Sheth for the Decree Holder
Mr Kamera for the Respondent