1.On 29th November 2019,the court entered judgment in favour of the Plaintiff and against the 2nd Defendant for the sum of USD 173,391.05together with interest thereon at court rates from the date of filing suit until payment in full. The court issued a decree dated 26th January 2021. The Plaintiff instructed the Interested Party (“the Auctioneers”) to execute the decree. On 3rd August 2021, the Auctioneers proceeded to a House located at within Runda Estate (“the House”) and proclaimed the household goods and motor vehicles registration numbers KBF 381U and KBN 271T.
2.In order to forestall the sale of the proclaimed goods and motor vehicles, the Objector lodged objection proceedings under Order 22 Rule 51 of the Civil Procedure Rules (“the Rules”). The application is supported by the grounds on its face and the affidavit of the Objector sworn on 6th August 2021. It is opposed by the Plaintiff through the replying affidavit of Sasha Nedelkovski, the Plaintiff’s International Sales Director sworn on 13th August 2021. The parties, through their Advocates, made brief oral arguments.
Analysis and Determination
3.Before determining the substance of the application, I will deal with the issue of the competence of the application raised by the counsel for the Plaintiff. The Plaintiff submits that the Objector failed to follow the procedure under Order 22 Rule 51 of the Rules by failing to give notice to the court and on all parties, especially to the 2nd Defendant as the judgment debtor. The said provision states as follows:
4.A reading of Order 22 Rule 51(1) above shows that it is couched in discretionary rather than mandatory terms, thus, the failure by the Objector to give notice to the court and other parties is not fatal to the application. In any case, the application was duly served together with the order staying execution thereby bringing to all the parties attention the objection proceedings.
5.Turning to the merits of the application, the main issue for determination is whether the Objector has established a legal or equitable interest in the whole or part of the attached property. Order 22 Rule 51 of the Rules above places the Objector with the burden of proving that it has a legal or equitable interest on the whole or part of the proclaimed/attached goods. This position has been buttressed by the court in a plethora of decisions including Chotabhai M. Patel v Chaprabhi Patel, where the following principles were distilled:
6.The question is thus whether the Objector has proved that the proclaimed household goods and the motor vehicles registration numbers KBF 381U and KBN 271T named in the proclamation notice dated 3rd August 2021 belong to him.
7.The Objector, in his deposition has annexed a certificate of lease, receipts and motor vehicle copy records to prove his proprietary interests over the proclaimed goods. The Plaintiff, on the hand stated that the Objector and the 2nd Defendant live in the House as husband and wife and that the receipts annexed by the Objector have no corresponding ETR receipts and are thus not valid. While the Plaintiff did not produce any evidence to show that the Objector and the 2nd Defendant live in the House as husband and wife as claimed, the Objector did not deny this averment in any subsequent deposition. He also did not deny that the House is also the residential dwelling of the 2nd Defendant. I still find that the decision in Michael Kwena v Raza Properties Limited & Another NRB HCCC No. 1914 of 2000  eKLR is apposite as was held that:
8.As already stated, the Objector has produced evidence of receipts of purchase of the household goods that bear his name. The Objector has further provided the House’s Certificate of Lease which also bears his name. The attached goods were found in the house he owns hence I hold that this is prima facie evidence of ownership and ability to acquire those items. The burden shifts to the Plaintiff to demonstrate otherwise and its contention that there are no corresponding ETR receipts or that they do not bear stamp duty receipts is simply not enough to dislodge the Objector’s evidence. In addition, the Objector has shown that the motor vehicle registration KBN 271T belongs to him.
9.However, a copy of the records for motor vehicle registration number KBF 381U indicates that it belonged to the 2nd Defendant and not the Objector at the time of attachment. The Objector has not demonstrated that it is entitled to or has a legal or equitable interest over this motor vehicle. I therefore find that motor vehicle registration number KBF 381U is available for attachment to satisfy the decree.
Conclusion and Disposition
10.For the reasons I have stated above, the Objector’s Notice of Motion dated 6th August 2021 succeeds to the following extent:
a. The attachment against the household goods and motor vehicle registration number KBN 271T as set out in the proclamation dated 3rd August 2021 be and is hereby raised.b. For avoidance of doubt, execution in respect of motor vehicle registration number KBF 381U shall proceed.c. The Plaintiff shall bear half the costs of this application. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF SEPTEMBER 2021.D. S. MAJANJAJUDGEMs Nekesa instructed by Musyoka Murambi and Associates for the Plaintiff.Mr Omondi instructed by Arwa and Change Advocates LLP for the Objector.