1.There are two Notice of Motion Applications on 14.12.2022 filed by the Objector and the 1st Defendant respectively for determination.
Objector’s Application Dated 14.12.2022.
2.The Application is brought under Section 1A, 1B and 3A of the Civil Procedure Act ,Order 22 Rule 51 & 52 , Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Rule 10 of the Auctioneering Rules seeking the following orders;
3.The same is supported by the Affidavit of Alice Nyawira Kanyoro deposed on 14.12.2022 in which it was stated that she is the legal wife of the 1st Defendant with 50% beneficial interest on all the properties duly registered in his name. On 13.12.2022, the Honourable court be pleased to he was served with a proclamation notice from Warren Auctioneers, she was never served with the warrants of attachment or warrants of sale of property and that is when she learnt of this suit . She was shocked as she was privy to the fact that registration number KBN 447 Q was sold to the 1st Defendant on 11.07.2011 at a consideration on Kshs 1,900,000 who took possession after paying a deposit of Kshs. 570,000 but has never cleared the balance and attempts to pursue the same have been futile.
4.The Objector contends that the 1st Defendant was never served with the summons to enter appearance and pleadings and is a stranger in these proceedings. Further, that the 1st Defendant was never notified that judgment was delivered and he was not visited by the Auctioneer. She deposed that the proclaimed goods were jointly owned with the 1st defendant as part of their matrimonial property. That the motor vehicle registration number KDB 530R Toyota Vanguard that she uses to travel to work in Muranga daily was wrongly attached and is still registered in the name of Seven L General Trading Limited, not the 1st Defendant.
5.She stated that other household goods were also attached and that the Plaintiff has never issued any demand or notice to the 1st Defendant as is the rule of procedure for payment and neither has he declined to settle the decree so as to warrant the aggressive and malicious actions by the Plaintiff. The objector was apprehensive that the intentional failure to value the items without a basis was based on an ulterior motive of the Plaintiff to sell the same at throw away price to the detriment of the 1st Defendant and the objector. Further, that the law prevents proclaiming and attaching the tools and implements of trade by section 44 of the Civil Procedure Act.
1St Defendant’s Application Dated 14.12.2022.
6.The second Application was brought Section 1A, 1B and 3A of the Civil Procedure Act, Order 9 Rule 9(a) and 10, Order 22 Rule 1 , Order 51 Rule 1 of the Civil Procedure Rules, 2010 seeking the following orders;
7.The same is supported by the Affidavit of Julius Mwanini in which he stated that he was never served with the summons to enter appearance, pleadings and/or any notice to attend court for hearing or otherwise therefore contended that he was a complete stranger to the proceedings and did not file any defence. He contended that he was not the beneficial owner of motor vehicle registration number KBN 447 Q as he sold it to the 2nd Defendant at Kshs 1,900,000 and received Kshs. 570,000 as deposit upon execution of the sale agreement on 11.7.2011 but the 2nd Defendant has never cleared the balance and attempts to pursue the same have been futile. The 2nd Defendant took possession of the motor vehicle and therefore he was shocked when his wife was ambushed by auctioneers at his matrimonial home who proclaimed and later attached some goods. He claims that he will suffer imminent and irreparable loss if the execution is not stayed and the auctioneer proceeds to attach and sell the proclaimed goods. The application herein is made without delay and it is indicated that the 1st Defendant is desirous of filing a defence.
8.The Plaintiff, Janet Chonge Walumbe filed a replying affidavit on 23.2.2023 in which it was deposed that the objector does not have authority to speak on behalf of the 1st Defendant. That the claim that she is entitled to 50% beneficial interest for allegedly being the 1st Defendant’s wife is a matter that requires high standard of proof which has not been presented before the court.
9.Further, that she has not attached the alleged undated proclamation notice served upon her and it was within her knowledge that the auctioneer did not have instructions to serve the proclamation notice. The Objector was never a party to these proceedings and was not entitled to be served with any pleadings. That she seems to be objecting on behalf of the 1st Defendant when she has no locus to do so.
10.The Plaintiff contended that at the time of filing the suit, the 1st and 2nd Defendant were the beneficial owners of the motor vehicle KBN 447 Q as per the records and the Objector has not produced any documents to the contrary. The defendants were represented by the firm of Kinyanjui Njuguna & Company Advocates and if the subject motor vehicle had changed ownership, the said firm ought to have been brought this to the attention of the court.
11.Further, Invesco Insurance being the insurer were aware and even attempted out of court settlement of the matter and since the matter was not settled, it proceeded to full trial. The 1st Defendant was represented from the time of this proceedings to its conclusion and cannot claim that he was not served specifically coming from the mouth of the objector which is non consequential.
12.The Plaintiff stated that at the time of proclamation, the 1st Defendant was in possession of motor vehicle KDB 530R. In addition, the Objector seems to indicate that the 2nd Defendant has allegedly breached the agreement and therefore the ownership of the subject motor vehicle was still disputed. The objector has not demonstrated any direct, indirect or remote relation with the attached properties to justify the objection proceedings nor has she stated which tools or implements of tool of trade were affected the proclamation. She did not state which profession or trade she was engaged in. The court was urged to dismiss the application as it was an abuse of the court process.
13.The applications were canvassed by way of written submissions.
14.The Objector submitted on one ground, as to whether the Plaintiff/ Respondent has attached items not fully owned by the 1st Defendant, It was submitted while citing section 6 & 9 of the Matrimonial Property Act, 2013 the Objector has made enough contributions in their matrimonial property, she is in gainful employment where she earns and provides for her family and commutes to work in Murang’a for gain. That the Objector/Applicant was not a party to the proceedings and her property should not be used to satisfy the decree herein.
15.The Objector submitted that she was the beneficial owner of motor vehicle registration number KDB 530 R however the registered owner was Seven L General Trading Limited. That she had met the threshold as she is not a party to the proceedings that the decree holder has indeed proclaimed her properties and she has equitable interest in the properties.
16.Reliance was placed on the case of Michael Kwena vs Raza Properties Limited & Another  e KLR, Electrowatts Limited vs Countryside Suppliers Limited & Another ; Mary W. Kamau (objector)  Eklr, Jared Mwagwaro Bundi & Another vs Primarosa Flowers Limited (2018) e KLR, Dubai Bank (K) Limited vs Comes-cons Africa Limited and Impak Holdings Company Limited and Arun C. Sharma vs Ashana Raikundalia T/A Raikundalia & Co advocates & 4 others  e KLR, Odhiambo Owiti & Company Advocates vs Dominion Farms Limited; Sukari Industries Limited (objector)  eKLR.
17.The Applicant submitted on two issues. As regards whether the Applicant should be granted stay of execution, It was submitted that the Applicant having not been heard in the initial suit stands to suffer irreparable damages as he will be condemned unheard. Placed reliance on the case of Tabro Transporters Limited vs Absalom Dom Lumbasi  eKLR.
18.On substantial loss, it was submitted that the Applicant stands to lose household goods, furniture and upon attachment, the auctioneer will eventually sell the same condemning the applicant unheard as he was not served with summons to enter appearance and the plaint. It was contended that having sold and given possession to the 2nd Defendant, he had no interest in the vehicle at the time of the accident. The motor vehicle was insured by the 2nd Defendant and his preferred insurer. He supported this position by citing the case of James Wangalwa & Another vs Agnes Naliaka Cheseto  eKLR , G.N. Muema P/A (sic) Mt. View Maternity & Nursing Home vs Miriam Maalim Bishar & Another  e KLR and relying on Article 50 of the Constitution of Kenya, 2010.
19.The Applicant submitted that he would not be in a position to provide any security for costs as he was no longer the beneficial and bonafide owner of the motor vehicle at the time of the accident. Further, that he should not be apportioned any liability as to the accident.
20.The Applicant opined that the application has been made without unreasonable delay as he learnt of the suit on 10.12.2022 and filed the instant application on 14.12.2022
21.Secondly, as to whether the court should set aside the judgment delivered on 22.01.2019, it was submitted that the court was empowered to set aside judgment for default of appearance and defence under order 10 Rule 11 of the Civil Procedure Rules, 2010. He contended that he was not served with summons to enter appearance and this did not know of the suit. This submission was supported by the case of James Kanyita Nderitu & Another vs Marios Philotas Ghikas & Another  eKLR, Mwala vs Kenya Bureau of Standards e KLR  1 EA 148, Philip Kiptoo Chemwolo and Mumias Sugar Company Limited vs Augustine Kubede (1982-1988) KAR, Jomo Kenyatta University of Agriculture and Technology vs Musa Ezekiel Oebal (2014) e KLR, Rayat Trading Company Limited vs Bank of Baroda & Tetezi House Limited  e KLR, Ridge vs Baldin (1863) 2 ALL ER 66 and Equatorial Commercial Bank Limited vs Mohan Sons (K) Limited (2012) eKLR.
22.The Plaintiff raised one issue, whether the objector has established her legal and/or equitable interest in the proclaimed goods or items. In addition to the averments in the Replying affidavit, it was submitted that the Objector has not annexed the log book for motor vehicle registration number KDB 530R in her name and has not established her relationship with the company Seven L General Trading Limited.
23.It was submitted that the attached good does not fall within the ambit of section 44 of the Civil Procedure Act since the objector has not demonstrated which goods or items are specifically her tools or implements of trade which will affect her performance of her profession as a teacher. At the time of instituting the suit, the motor vehicle was in the name of the 1st Defendant and the police abstract indicates the 2nd Defendant as the beneficial owner.
24.It was submitted that the subject motor vehicle was found in the compound of the 1st Defendant and the 1st Defendant has not appeared before the court to challenge the attachment. There was no substantive ground put before the court to stop the process.
25.I have considered both applications, the response thereto, the submissions of the parties and the court record. The issues for determination are;
Whether the Objector should be enjoined in this suit
26.The Objector contends that she is the wife of the 1st Defendant with 50% beneficial interest on all the properties duly registered in his name and the proclamation notice has attached their matrimonial property. That the motor vehicle registration number KDB 530R Toyota Vanguard that she uses to travel to work in Muranga daily was wrongly attached.
27.It was held in the case of Arun C. Sharma versus Ashana Raikundalia T/A A. Raikundalia & Co. Advocates & 4 others  Eklr, that: -
28.In Stephen Kiprotich Koech v Edwin K. Barchilei; Joel Sitienei (Objector)  eKLR, the Court held: -
29.In Michael Kwena v Raza Properties Limited & Another  eKLR, the court held: -
30.In MHW v Thomas Ogutta Ongori; AHH (Objector)  eKLR, the Court observed: -
31.I note that from the log book registered on 2.2.2021, the said motor vehicle is registered in the name of Seven L General Trading Limited, not the 1st Defendant nor the objector. Nothing has been put forward to aid the court in understanding the relationship between the objector and motor vehicle registration number KDB 530R Toyota Vanguard.
32.From the Objectors Application, there is a sale agreement attached dated 11.07.2011 between the 2 defendants, in which it is indicated that the motor vehicle has been sold for Kshs 1,900,000 and a deposit of Kshs 570,000 has been paid which the objector and the 1st defendant admit. The same agreement indicates that the log book is in the possession of the 1st Defendant to date since the full purchase price has not been paid. Why then didn’t he produce the same?
33.As regards the issue of matrimonial property being attached. This is unfortunately not the forum to determine if the objector and the 1st Defendant were married or whether or not the said property are matrimonial property. There is no marriage certificate for example to even show that prima facie that there is an existing marriage.She did not attach any receipts as proof of having purchased any of the attached properties. The objector is thus a stranger in these proceedings.
34.This court finds that the threshold for enjoining the objector has not been met and thus refused to grant the said orders.
Whether the Objector has locus standi to respond to the issue of service
35.From the application, it appears that the Objector has purported to raise an issue of service and responded to it. It is not clear in what capacity she is doing this as no authority to swear has been filed and the 1st Defendant from his supporting affidavit seems to be of sound mind and able to handle his issues personally. In the absence of any authority, I find that the Objector has no locus to respond to the issues in this matter on behalf of the 1st Defendant. She is not a party to the main suit and cannot be the one to answer to certain issues especially that of pleadings.
Whether the judgment dated 22.01.2019 should be set aside and all consequential orders issued thereof against the 1st Defendant/Applicant herein.
36.The 1st Defendant contends that he was not served with the summons to enter appearance, pleadings and/or any notice to attend court for hearing or otherwise therefore contended that he was a complete stranger to the proceedings and did not file any defence. However, from the record, the firm of Kinyanjui Njuguna came on record via a memorandum of Appearance dated 22.10.2012 for the “Defendants” and filed a statement of defence on 24.10.2012.
37.Subsequently on 17.2.2016, a consent was entered by Mr. Wahome for the defendants and Mrs Cherono for the Plaintiffs that judgment be entered against for the plaintiffs against the defendant’s jointly and severally on liability in the ratio of 10:90 with the defence taking 90% and that the matter proceeded to hearing for assessment of damages.
38.The said Mr. Wahome participated in the hearing and cross examined the witnesses. Submissions were filed on behalf of the 1st and 2nd Defendants on 6.04.2016.
39.The 1st Defendant purports to have only become aware of the matter when the auctioneers showed up at his home. He has however not responded to the issue being represented by the firm of Kinyanjui Njuguna.
40.In the case of Mureithi Charles & another v Jacob Atina Nyagesuka  eKLR the court stated that;
41.The issue of regular judgment was addressed in the case Mwala -v- Kenya Bureau of Standards EA LR (2001) 1 EA 148, where the court stated;
42.Further, the Court of Appeal observed in James Kanyiita Nderitu & Another  eKLR, there is little option for a court but to set aside a regular judgment. The Court stated as follows:
43.There is no evidence of service of summons from my perusal of the record. However the fact remains that the Defendants entered appearance, filed a defence, participated in the hearing after entering a consent and were represented at the time of judgment delivery. All these facts have not been denied.
44.The issue of failure to be served with summons but entering appearance was discussed by Aburili J in the case of Paulina Wanza Maingi v Diamond Trust Bank Limited & another  eKLR where she said as follows;
45.I am persuaded by the finding in the case of Amina Hersi Moghe & 2 others v Diamond Trust Bank Kenya Limited & another  eKLR where the court observed that;
46.In conclusion, I find that the judgment entered was regular and decline to set it aside. This suit was filed in 2012, judgment delivered in 2019 and the present applications filed in 2022. Setting aside the judgment on the accounts raised by the Applicant would not be in the interest of justice.
Whether the proclamation and warrants of attachment thereof issued on 13th December 2022 should be lifted
47.The reasons advanced by the Objector for setting aside of the proclamation are that she is the legal wife of the Applicant however for the reasons discussed earlier, I see no reason to lift the proclamation and warrants of attachment issued on 13.12.2022.
48.In the end, I issue orders as follows;a.The Application dated 14.12.2022 filed by the Objector is dismissed.b.The Application dated 14.12.2022 filed by the 1st Defendant is dismissed.c.Costs of both applications are awarded to the Respondent.