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ELCStruck OutNot stated on the face of the judgment (application dated November 20, 2023)· [2024] KEELC 1113 (KLR)

Mundusi Investments Ltd v M’Mugambi & 2 others; M'Anampu (Objector) (Environment and Land Appeal 1 of 2021) [2024] KEELC 1113 (KLR)

High Court of Kenya (per coram signature 'JUDGE'; only the judge's name is printed)
28 February 2024
CNCK Nzili
791 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court struck out an objection to a property auction because the objector skipped a mandatory written notice step and used one lawyer for both sides.

What this practically means

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Executive summary

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The applicant, describing himself as an objector to a proclamation notice, moved the court by notice of motion supported by an affidavit sworn on November 20, 2023, seeking to stop the auction of proclaimed movables in execution of a certificate of costs of Kshs.178,000/= issued on October 31, 2023 in favour of the respondent, with warrants of attachment issued on November 9, 2023 and proclamation effected on November 15, 2023. He contended he was sole owner of the proclaimed movables, was not a party to the underlying suit, had already paid Kshs.100,000/= towards the decretal sum, and that the proclamation for the full amount including auctioneer's fees was malicious. The respondent opposed, acknowledging the Kshs.100,000/= payment but asserting the applicant had refused to negotiate auctioneer's fees, that no auction was due, and that the applicant was hiding behind a one-person company. The court, Hon. CK Nzili, J, framed the matter under Order 22 rules 51, 52 and 54 of the Civil Procedure Rules. It found that no notice of objection had been filed or served before the application, and that the application was mounted by advocates acting for both the objector and the judgment debtor, with no notice to act for the objector. The court therefore found the application, and the decree-holder's response, incompetent and struck both out, with no order as to costs, granting liberty to move the court properly.

Key legal issues

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01

Compliance with Order 22 rule 51 procedure for objection to attachment

Holding

The application was incompetent as no notice of objection had been filed or served before the application was brought

Reasoning

Order 22 rule 51 requires a party claiming that attached property does not belong to the judgment debtor to give written notice of objection to the court, all parties and the decree-holder; rules 52 and 54 then govern stay and intention to proceed. On the record no such notice was filed or served before the chamber application, so the court could not entertain it.

p. 2
02

Advocates acting for both the objector and the judgment debtor

Holding

The joint representation rendered the application incompetent notwithstanding the parties' right to counsel of choice

Reasoning

Although a party may choose his own advocate, the same firm (M/s Gichunge Muthuri & Co. Advocates) filed for both the objector and the judgment debtor without a notice to act for the objector. This conflict of position, coupled with the procedural default, rendered the application incompetent and it was struck out.

p. 2

Legal principles established

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  • A third party objecting to attachment under Order 22 rule 51 must first give notice in writing to the court, all parties and the decree-holder before approaching the court
  • An application in execution proceedings is incompetent where no formal notice of objection has been filed and served, and where the same advocates act for both the objector and the judgment debtor

Court orders

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  1. 1.The application dated November 10, 2023 (per the operative paragraph; elsewhere described as November 20, 2023) is struck out
  2. 2.The response by the decree-holder is also struck out
  3. 3.No order as to costs
  4. 4.Parties are at liberty to move the court in accordance with the law

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 rule 51
  • Civil Procedure RulesOrder 22 rules 52 & 54
Jurisdiction invoked
Inherent execution/objection jurisdiction under Order 22 rules 51, 52 and 54 of 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, "Mundusi Investments Ltd v M’Mugambi & 2 others; M'Anampu (Objector) (Environment and Land Appeal 1 of 2021) [2024] KEELC 1113 (KLR)", Case Analysis (2024). Not stated on the face of the judgment (application dated November 20, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1113/eng@2024-02-28

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