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ELCPartially AllowedNotices of Motion dated 18th December 2019 and 16th January 2020 (arising from Civil Appeal No. 105 of 2018)· [2021] KEELC 4572 (KLR)

Charles Langat v Mukesh Kumar Kanthilal Patel; Pareshkumar Kantibhai Patel & another (Objectors) [2021] KEELC 4572 (KLR)

Environment and Land Court
28 January 2021
2,815 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court dismissed an objector's attempt to shield vehicles from auction, ruling the sale agreements were a sham to defeat a judgment creditor.

What this practically means

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Executive summary

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Two applications arose out of execution of the Court of Appeal's judgment of 3rd October 2019 in Civil Appeal No. 105 of 2018, which set aside the trial court's judgment and allowed the Plaintiff's suit for vacant possession, mesne profits and unpaid rent over parcel Sotik Township/667. The Objectors, claiming to be related to the Defendant, sought to restrain attachment of motor vehicles KBA 500W and KBL 424Q and goods of Akshar Enterprises Ltd, contending that execution was flawed because no application for execution or warrants of attachment had been obtained. The Plaintiff separately sought an order that the Officer Commanding Sotik Police Station provide security to enable enforcement of the Court of Appeal orders. The court held that a decree dated 7th March 2019 had been extracted under Rule 34(1) of the Court of Appeal Rules and was executable, Section 4 of the Appellate Jurisdiction Act permitting Court of Appeal judgments to be enforced as High Court judgments. On ownership, the court found the 1st Objector had failed to discharge the burden of proving purchase for value; the sale agreements of 13th September 2019, executed after extraction of the decree, were a sham and part of a scheme to defeat execution. The Objectors' application was dismissed with costs. The Plaintiff's application was allowed: auctioneers, with police assistance, were authorized to remove the Defendant from the suit property and hand possession to the Plaintiff forthwith, with execution costs borne by the Defendant and costs of the application awarded to the Plaintiff.

Key legal issues

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01

Regularity of execution of a Court of Appeal decree

Holding

The decree extracted on 7th March 2019 under Rule 34(1) of the Court of Appeal Rules was executable; no separate application for warrants was necessary as alleged.

Reasoning

The court found the formal expression of the Court of Appeal judgment had been extracted as a decree as provided by Rule 34(1) of the Court of Appeal Rules, and Section 4 of the Appellate Jurisdiction Act permits such judgment to be executed as if it were a High Court judgment. The Objector's insistence on prior warrants was therefore misconceived.

p. 3
02

Ownership of the proclaimed motor vehicles

Holding

The 1st Objector failed to prove bona fide purchase for value; the vehicles remained available for attachment as the Defendant's property.

Reasoning

Save for sale agreements executed after extraction of the decree, no evidence of transfer for value or log book in the Objector's name was produced. NTSA searches showed the Defendant as owner. The court found the agreements were a sham and part of a scheme to defeat execution, placing the burden of proof on the Objector.

p. 3
03

Enforcement of the orders of 3rd October 2019 with police assistance

Holding

In the absence of a stay, the Court of Appeal orders had to be obeyed, and the court ordered the auctioneers with police assistance to enforce them and remove the Defendant from the suit property.

Reasoning

The Defendant did not controvert the Plaintiff's averments that he frustrated enforcement. The court held that un-stayed Court of Appeal orders bind it and that it would issue orders ensuring compliance, authorizing removal of the Defendant from Sotik Township/667 and delivery of vacant possession to the Plaintiff.

p. 4

Legal principles established

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  • A judgment of the Court of Appeal may be executed and enforced as if it were a judgment of the High Court.
  • An objector in execution proceedings bears the burden of proving ownership of attached property.

Court orders

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  1. 1.The Objectors' Notice of Motion dated 18th December 2019 dismissed in its entirety with costs
  2. 2.M/s Hegeon Auctioneers with the assistance of the Officer Commanding Sotik Police Station ordered to give full effect to the orders of 3rd October 2019
  3. 3.M/s Hegeon Auctioneers with the assistance of the Officer Commanding Sotik Police Station authorized to remove the Defendant from the premises comprised in land parcel No. Sotik Township/667 and ensure possession is immediately given to the Plaintiff
  4. 4.The eviction/enforcement orders to be executed forthwith and any costs incurred passed over to the Defendant
  5. 5.Plaintiff awarded costs of the application dated 16th January 2020

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 51(1) & (2)
  • Civil Procedure RulesOrder L Rule 1
  • Civil Procedure RulesOrder 22 Rule 6 (as cited by Objector)
  • Civil Procedure RulesOrder 22 Rule 53
  • Civil Procedure ActSections 1A, 1B, 3A, 38
  • Traffic ActSection 8
  • Appellate Jurisdiction ActSection 4
  • Court of Appeal RulesRules 33, 34(1), 36(1)

Cases cited (5)

  • Thuranira Karauri vs Agnes Ncheche
    [195-1998] 1EA 57
  • African Commuter Services Ltd vs Kenya Civil Aviation Authority & 2 Others
    [2014] eKLR
  • Stephen Wanjau Mwangi & 2 Others vs Patrick Tumuti Kimutwe
    [2019] eKLR
  • Akiba Bank Ltd v. Jetha & Sons Ltd
    [2005] eKLR
  • Chatabhai M. Patel & Another
    HCCC No. 544 Of 1957 (Lewis) On 8/12/58 HCU (1958) 743
Jurisdiction invoked
Order 22 Rule 51(1) & (2) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act; enforcement of Court of Appeal decree under Section 4 of the Appellate Jurisdiction Act

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 Langat v Mukesh Kumar Kanthilal Patel; Pareshkumar Kantibhai Patel & another (Objectors) [2021] KEELC 4572 (KLR)", Case Analysis (2021). Notices of Motion dated 18th December 2019 and 16th January 2020 (arising from Civil Appeal No. 105 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4572/eng@2021-01-28

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