Lilian M’mbone Ababu v Nairobi Aviation College Ltd & 3 Others [2014] KEELC 349 (KLR)
The bottom line
#Kenya's High Court dismissed a woman's bid to save household goods seized for her fiance's unpaid rent, because she proved neither ownership nor the right procedure.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant could resist the attachment of proclaimed goods under Order 22 Rule 51
The application was incompetent because Order 22 Rule 51(1) concerns execution of a decree and no decree was being executed
The court examined Order 22 Rule 51(1) of the Civil Procedure Rules 2010 and held that the provision relates to execution of a decree. Since the attachment arose from a distress for rent by an auctioneer rather than execution of a decree, the application sought what could not lie and the applicant ought instead to have pursued her earlier amended Notice of Motion.
Ownership of the suit property and the right to levy distress for rent
The 1st Defendant was the registered owner of the suit property since 31st July 2009 and was entitled to distress for rent against the 2nd Defendant
Relying on Sections 24(a) and 26(1) of the Land Registration Act, the court held the 1st Defendant's certificate of title was prima facie evidence of ownership. The applicant ceased to be registered proprietor when the property was transferred to the 1st Defendant. A tenancy agreement existed between the 1st and 2nd Defendants, and rent was demanded for three years, entitling the 1st Defendant to levy distress.
Whether the proclaimed household goods belonged to the applicant
The applicant failed to prove ownership of the proclaimed goods
The applicant claimed the proclaimed household goods were hers and that she had no tenancy with the 1st Defendant. The court found no evidence to show the goods belonged to her rather than her fiance, the 2nd Defendant, who she admitted sometimes resided in the house and to whom she had given her title document as loan security.
Legal principles established
#- A certificate of title is prima facie evidence of ownership of land
- Registration as proprietor of land vests absolute ownership together with all rights and privileges appurtenant thereto
- Order 22 Rule 51(1) objection proceedings relate to execution of a decree and do not lie where no decree exists
Court orders
#- 1.The applicant's Notice of Motion dated 8th July 2013 is dismissed
- 2.Costs of the application to the 1st Defendant
- Jurisdiction invoked
- Order 22 Rules 51 and 52 of the Civil Procedure Rules; Sections 3 and 3A of the Civil Procedure Act (Cap 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lilian M’mbone Ababu v Nairobi Aviation College Ltd & 3 Others [2014] KEELC 349 (KLR)", Case Analysis (2014). ELC No. 874 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/349/eng@2014-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.