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ELCDismissedChamber Summons dated 29th April 2015 (objection proceedings under Order 22 Rule 51(2))· [2015] KEELC 126 (KLR)

Charles Ohuru Nyamboye & another v Campus Hostels Limited [2015] KEELC 126 (KLR)

High Court of Kenya
30 October 2015
1,536 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A company claiming auctioned goods are its own must prove ownership with documents, or its objection will fail with costs.

What this practically means

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Executive summary

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The objector, Campus Place Limited, filed a Chamber Summons dated 29th April 2015 under Order 22 Rule 51(2) of the Civil Procedure Rules 2010 seeking lifting of the attachment and proclamation of goods by Tip Top Auctioneers on 24th April 2015, executed in pursuit of a debt owed by the defendant, Campus Hotel Limited, under a consent judgment entered on 28th February 2015. The objector, through its Administrative Manager Jafari Kiraga, asserted it was a distinct entity that owned all the proclaimed goods and that the attachment caused it business losses. The plaintiffs opposed, contending that Kiraga lacked authority, that no documentary proof of ownership was produced, that the directors of both companies were identical, and that the objector did not exist, its certificate of incorporation being a forgery. The court framed two issues: where the goods were attached and proof of ownership; and whether the objector and defendant were the same body. Distinguishing Aroni Sure v Gesare Nyamaiko, the court held the objector bore the burden of proving its interest, requiring receipts, a lease or title, or business permits and licences, none of which were produced. The plaintiffs' forgery allegation also failed for want of proof of an actual company search. Although the companies were distinct legal entities, the signature of Bruno Lemashon - the defendant's general manager - on the auctioneer's inventory suggested the objection may have been designed to defeat execution. The objection proceedings were dismissed with costs to the plaintiff/decree holder.

Key legal issues

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01

Ownership of attached goods where attachment occurred at premises claimed by the objector

Holding

The objector failed to prove ownership; it should have produced receipts, a lease or title to the premises, or business permits/licences evidencing it carried on business there

Reasoning

The court distinguished Aroni Sure v Gesare Nyamaiko, where the place of attachment was decisive because the goods (cows) were found in a village unrelated to the defendant. Here the goods were proclaimed from a known building whose occupancy was unproven. Because the objector alleged the goods were not the defendant's, the burden of proof lay on it under sections 107 and 108 of the Evidence Act, and it did not discharge that burden.

p. 2
02

Whether the objector and the judgment debtor are the same entity

Holding

They are distinct legal entities, but evidence of overlap (the same signatory to the inventory being the defendant's general manager) supported an inference the objection was aimed at defeating execution

Reasoning

Although both are separate companies limited by shares, the inventory left by the auctioneer was signed by Bruno Lemashon, who had sworn an affidavit as general manager of the defendant. In the absence of proof of the objector's interest in the premises or goods, the court inferred the objection may have been brought to defeat execution of the consent judgment.

p. 3

Legal principles established

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  • An objector in execution proceedings bears the burden of proving on a balance of probabilities his legal or equitable interest in the property attached
  • A party challenging a certificate of incorporation as a forgery must demonstrate that a search was actually conducted with the Registrar of Companies
  • Distinct companies limited by shares are separate legal entities notwithstanding common directors

Court orders

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  1. 1.Dismissal of the objection proceedings
  2. 2.Costs of the objection proceedings awarded to the Plaintiff/decree holder

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 22 Rule 51(2)
  • Evidence ActSections 107 and 108

Cases cited (2)

  • Aroni Sure and 9 others vs Gesare Nyamaiko
    (1988) eKLR
  • Isaac Okech Osi vs Qreens Cleaners and Driers Ltd
    (2015) eKLR
Jurisdiction invoked
Order 22 Rule 51(2) of the Civil Procedure Rules 2010 (objection proceedings in execution of decree)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Charles Ohuru Nyamboye & another v Campus Hostels Limited [2015] KEELC 126 (KLR)", Case Analysis (2015). Chamber Summons dated 29th April 2015 (objection proceedings under Order 22 Rule 51(2)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/126/eng@2015-10-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.