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ELCDismissedMiscellaneous Application 133 of 2019· [2023] KEELC 17754 (KLR)

Kahuthu and Kahuthu Advocates v Karuga & another

Environment and Land Court
30 May 2023
MMM.D. Mwangi
1,732 words in judgment
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The bottom line

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A Kenyan court dismissed a company's attempt to stop auction of attached goods because the person swearing its affidavit had no authority and the company proved no ownership.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (M.D. Mwangi J) determined an objection to execution brought by Dekings Traders Limited under Order 22 rules 51 and 52 of the Civil Procedure Rules and section 3A of the Civil Procedure Act. The Objector sought declarations that a proclamation of goods by Jogan Dries Auctioneers on October 5, 2022, in execution of a decree of Kshs 1,065,645 against Rose Wambui Karuga and Kenneth Gichinga Karuga as legal representatives of the estate of Dedan Karuga Gichinga, was unlawful, that the proclaimed items belonged to the Objector company, and that the judgment-debtors had no interest in them. The Decree-Holder, Kahuthu and Kahuthu Advocates, opposed via three replying affidavits, producing Registrar of Companies records showing the deponent, Hilda Nyokabi, was not a director of the Objector, and a Family Bank letter confirming the bank had no interest in motor vehicle KBD 560K. The court framed three issues: the competence of the supporting affidavit, the validity of the proclamation, and the orders and costs. It held that the deponent lacked authority under Order 4 rule 1(4), applying Spire Bank Limited v Land Registrar, rendering the application defective. Alternatively, applying Harley's Limited v Wockaine (K) Limited, the Objector failed to prove a legal or equitable interest in the proclaimed goods. The application was dismissed in its entirety with costs to the Decree-Holder, borne by the Objector.

Key legal issues

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01

Authority of deponent to swear affidavit for a company

Holding

Hilda Nyokabi was neither a director, secretary nor principal officer of the Objector; the supporting affidavit was incompetent and the application defective

Reasoning

The Decree-Holder produced Registrar of Companies records showing the directors were Rose Wambui Karuga and Dedan Karuga Gichinga. Once unauthorised status was shown, the burden shifted to the deponent to produce authority under order 4 rule 1(4), which she did not. The deponent was therefore a stranger to the company and the application defective.

02

Whether the proclamation was defective, null and void

Holding

The Objector failed to discharge the burden under order 22 rule 51 of proving a legal or equitable interest in the proclaimed goods

Reasoning

The logbook claim of a charge to Family Bank was rebutted by a letter from Family Bank confirming no interest. The furniture was claimed as personally purchased by the deponent, who should have filed objection proceedings in her own name. The company therefore showed no definite interest in the attached goods.

Legal principles established

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  • Order 22 rule 51 places the burden on the objector to prove a legal and equitable interest in goods under attachment
  • A person swearing an affidavit on behalf of a company must demonstrate authority under order 4 rule 1(4); where unauthorised, the burden shifts to that officer

Court orders

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  1. 1.The Objector's application dated October 6, 2022 is dismissed in its entirety
  2. 2.Costs of the application awarded to the Decree-Holder, to be borne by the Objector

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 rules 51 & 52
  • Civil Procedure RulesOrder 4 rule 1(4)
  • Civil Procedure ActSection 3A

Cases cited (2)

  • Spire Bank Limited v Land Registrar & 2 others
    [2019] eKLR

    Intention behind order 4 rule 1(4); burden shifts to an officer shown to be unauthorised to prove authority under the company seal

  • Harley's Limited vs Wockaine (K) Limited
    HCCC No 1753 of 2001

    Order 22 rule 51 places the burden on the objector to prove legal and equitable interest in attached goods

Jurisdiction invoked
Order 22 rules 51 & 52 of the Civil Procedure Rules and section 3A of the Civil Procedure 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, "Kahuthu and Kahuthu Advocates v Karuga & another", Case Analysis (2023). Miscellaneous Application 133 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17754/eng@2023-05-30

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