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ELCPartially AllowedELC E166 of 2023· [2025] KEELC 696 (KLR)

Ndumia & another v Oyugi t/a Meroka & Company Advocates; Tony (Objector) (Environment & Land Case E166 of 2023) [2025] KEELC 696 (KLR)

Environment and Land Court
13 February 2025
4,724 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court set aside the wrongful attachment of a car the owner proved was only borrowed by the judgment debtor.

What this practically means

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Executive summary

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The Objector, Kiprotich Bett Tony, brought an objection and application under Order 22 Rule 51 of the Civil Procedure Rules seeking the setting aside of the attachment of motor vehicle KDL 502Q, a Toyota Fielder, attached by Hazara Auctioneers on 7th December 2024 in execution of a consent decree of Kshs. 1,250,000/- entered against the judgment debtor, Isaac Meroka Oyugi. The Objector claimed sole ownership, asserting he had leased the vehicle to Thomas Joshua Onchangu, who had briefly lent it to the judgment debtor when the auctioneer attached it. The Applicants opposed, alleging a scheme by the judgment debtor to defeat the decree through relatives' names. The court framed four issues: validity of the replying affidavit, merit of the objection, breach of Rule 12(b) of the Auctioneers Rules, and costs. It held the replying affidavit valid despite the undated jurat, which was remedied, and per Francis Kariu Gakumbi, joint affidavits are permissible. On the evidence, including the logbook and car hire agreement, and absent any challenge by the Applicants or nexus between the Respondent and Objector, the Objector proved ownership. The court also found the auctioneer in breach of Rule 12(b) for failure to produce evidence of proclamation (Sale Form 2). However, the claim for costs against the auctioneer under Section 26 of the Auctioneers Act failed, no damages claim having been made and the auctioneer not being a party. The attachment was set aside with costs in the cause.

Key legal issues

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01

Validity of the replying affidavit

Holding

The replying affidavit was not defective; the defect of an undated jurat was cured and a jointly sworn affidavit is permissible

Reasoning

The court found the first affidavit lacked a date at the jurat contrary to Section 5 of the Oaths and Statutory Declarations Act, but the Applicants remedied the defect by filing a dated affidavit. The joint swearing was upheld per Francis Kariu Gakumbi, and no prejudice befell the Objector. Article 159(2) substantive justice prevailed over technicality.

p. 7
02

Objector's ownership of the attached motor vehicle

Holding

The Objector proved legal ownership of KDL 502Q through the logbook and car hire agreement

Reasoning

The Objector exhibited the logbook registered in his name and a car hire agreement with Thomas Joshua Onchangu. The Applicants did not contest ownership nor link the Respondent to the Objector. Supporting affidavits from the lessee and the judgment debtor confirmed the vehicle was borrowed, and the auctioneer's notification recorded that the car was not the Respondent's.

p. 8
03

Breach of Rule 12(b) of the Auctioneers Rules

Holding

The auctioneer breached Rule 12(b) by failing to adduce evidence of proclamation, specifically Sale Form 2

Reasoning

The Applicants claimed the vehicle was proclaimed on 22nd October 2024 but produced no Sale Form 2 or other evidence of proclamation. The statutory requirement of a proclamation in Sale Form 2 was therefore unmet, vindicating the Objector's complaint that the vehicle was attached without prior proclamation.

p. 8
04

Costs against the auctioneer personally

Holding

The claim for costs against the auctioneer failed

Reasoning

Section 26 of the Auctioneers Act permits recovery of damages for unlawful exercise of an auctioneer's powers, but the Objector made no damages claim. The auctioneer was also not a party to the suit, having acted as agent of the Applicants, so no personal costs order could be made.

p. 9

Legal principles established

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  • The burden of proving proprietary ownership in an execution objection lies with the Objector
  • An Objector must exhibit evidence of legal or equitable interest in property attached in execution
  • Failure to produce the proclamation Sale Form 2 as required by Rule 12(b) of the Auctioneers Rules amounts to a breach of that Rule
  • Two or more people may swear an affidavit jointly despite the first-person rule

Court orders

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  1. 1.That the attachment of the Objector's motor vehicle registration KDL 502Q, Toyota Fielder, Station Wagon by Hazara Auctioneers is raised/set aside
  2. 2.Costs shall be in the cause
Jurisdiction invoked
Order 22 Rule 51 of the Civil Procedure Rules, Section 1A, 1B & 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, "Ndumia & another v Oyugi t/a Meroka & Company Advocates; Tony (Objector) (Environment & Land Case E166 of 2023) [2025] KEELC 696 (KLR)", Case Analysis (2025). ELC E166 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/696/eng@2025-02-13

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