A. Whether the supporting affidavit is defective and incompetent for want of authority and capacity by the deponent.
13.The deponent of the affidavit in support of the Objector’s application, Hilda Nyokabi, avers that she is Director in the Objector hence the authority to swear on its behalf. The Decree-Holder/ Applicant on the other hand contends that the Supporting Affidavit and the entire application said to be filed on behalf of the Objector be struck out on grounds that the deponent is not a director of the company and has not demonstrated the authority to swear the affidavit on its behalf. The Decree-Holder attached a copy of the records from the Registrar of Companies which shows that the Directors of Dekings Traders Limited are Rose Wambui Karuga and Dedan Karuga Gichinga as at October 17, 2022.
14.The Objector describes itself as a limited liability company and therefore the deponent of the affidavit must have authority to swear on its behalf. It is however evident that the Hilda Nyokabi is neither a director nor a secretary nor a principal officer of the Objector company. She does not hold a position of authority or decision-making in the Objector company such as to purport act for it. The Decree-Holder having adduced evidence proving that she is not a director, she ought to have annexed the authority from the company authorizing her to act on its behalf as required under order 4 rule 1 (4) of the Civil Procedure Rules.
16.The deponent having no authority and capacity to act on behalf of the Objector Company, she is a stranger to the Objector. The Application is therefore defective and should therefore be struck-out.
17.Assuming that the failure to adduce the authority is a procedural technicality, would the application still be merited? In response thereof I will address the second issue stated above.
B. Whether the proclamation was defective, null and void;
18.The Objector contends that the proclaimed Motor Vehicle is registered in its name and that the house hold items proclaimed were purchased by the deponent. That the proclaimed goods therefore do not belong to the Judgement-Debtor and are incapable of being attached in execution of a decree against the judgment-debtors.
19.As held by Kasango J in Harley’s Limited vs Wockaine (K) Limited (HCCC No 1753 of 2001) order 22 rule 51 of the Civil Procedure Rules places the burden on the Objector to prove that it has a legal and equitable interest in the goods being attached.
20.In support of its application, the Objector produced a Logbook purporting that the proclaimed Motor Vehicle belonged to the Objector and was charged to Family Bank. She further stated that she was in the process of discharging the same. She did not however adduce any evidence to that effect. In rebuttal, the Decree-Holder produced a Letter dated 22nd October, 2022 from Family Bank which confirms that Family Bank has no interest in the said Motor Vehicle.
21.As for some proclaimed furniture, the deponent avers that they are old furniture which she has sentimental attachment to having personally purchased them. She produced receipts confirming the alleged purchase. Clearly, the said furniture is not owned by the Objector. The deponent is a different legal entity from the objector company, she ought to have commenced the Objection Proceedings in her own name and capacity as the owner if at all.
22.It is my finding that the Objector has not established a definite interest in the attached goods.
23.In light of the foregoing, the Objector’s application dated October 6, 2022 would still have been dismissed with costs to the Decree-Holder to be borne by the Objector.
24.The conclusion is that the objector’s application is dismissed in its entirety with costs.It is so ordered.