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ELCPartially AllowedAppeal No. 109 of 2010 (arising from CMCC No. 2304 of 2009) - Objector's Notice of Motion dated 16th January 2018· [2019] KEELC 4869 (KLR)

Hassan Ali Osman v Abdulrahman M Basheikh & another [2019] KEELC 4869 (KLR)

High Court of Kenya at Mombasa
22 January 2019
CYC. Yano
1,022 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This judgment determines an Objector's Notice of Motion dated 16th January 2018 by Ali Ahmed Mohamed, seeking stay of execution of warrants of attachment issued in execution of a certificate of costs, and setting aside of the warrant of attachment and consequential orders. The Objector, who was not a party to the underlying suit and appeal, averred that the proclaimed motor vehicle (Registration No. KBY 054U Toyota Hilux) and other goods were his, producing the logbook and VAT registration certificate in his name, and that the certificate of costs was a nullity because the instructing advocates came on record irregularly without leave under Order 9 of the Civil Procedure Rules. The appellant/judgment creditor opposed, explaining that his former advocate introduced Ms. Kedeki to act in the appeal, though no notice of change of advocate was filed, and that service had always been effected at the Objector's premises. The court relied on Section 8 of the Traffic Act deeming the registered owner to be the owner unless the contrary is proved; no contrary evidence was adduced, so the vehicle was held to belong to the Objector. The court further found that the Objector discharged the onus of proving the other proclaimed goods were his, and that service of the judgment debtor at the Objector's premises did not justify attaching the Objector's property. The court declined to determine the representation issue. The application was allowed, the warrant of attachment set aside, the goods ordered released, with costs to the Objector borne by the judgment creditor/Appellant.

Key legal issues

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01

Ownership of proclaimed goods in execution proceedings

Holding

The Objector proved ownership of the motor vehicle by producing the logbook, and, once the vehicle was found to be his, discharged the onus of proving the other proclaimed goods were also his

Reasoning

Section 8 of the Traffic Act deems the registered owner of a vehicle to be its owner unless the contrary is proved. No contrary evidence was adduced by the appellant, so the vehicle belongs to the Objector. Since the goods were proclaimed at the Objector's premises and the vehicle was his, the court found he discharged the onus regarding the other goods; service at the premises did not justify attaching them.

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02

Whether the certificate of costs was a nullity for non-compliance with Order 9 on change of advocates

Holding

The court found it unnecessary to determine this issue

Reasoning

Although the Objector argued that Kedeki & Company Advocates came on record irregularly without leave under Order 9 after judgment, the appellant explained the introduction of the new advocate. The court resolved the application on ownership grounds alone and expressly declined to engage with the representation question.

p. 2

Legal principles established

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  • The person in whose name a vehicle is registered is deemed its owner unless the contrary is proved (Section 8, Traffic Act)
  • Service of documents on a judgment debtor at a third party's premises does not justify attachment of the third party's goods

Court orders

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  1. 1.The Objector's Notice of Motion dated 16th January 2018 is allowed
  2. 2.The warrant of attachment dated 10th January 2018 is set aside
  3. 3.The Objector's motor vehicle Registration No. KBY 054U and the properties specified in the proclamation dated 10th January 2018 shall not be attached and, if already attached, shall be released forthwith to the Objector
  4. 4.The Objector shall have costs, to be borne by the judgment creditor/Appellant

Authorities

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Legislation

  • Traffic ActSection 8
  • Civil Procedure RulesOrder 9
Jurisdiction invoked
Inherent jurisdiction of the High Court in respect of an appeal from the subordinate court (CMCC No. 2304 of 2009); objection to execution proceedings under the Civil Procedure Rules

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, "Hassan Ali Osman v Abdulrahman M Basheikh & another [2019] KEELC 4869 (KLR)", Case Analysis (2019). Appeal No. 109 of 2010 (arising from CMCC No. 2304 of 2009) - Objector's Notice of Motion dated 16th January 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4869/eng@2019-01-22

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