Ndumia & another v Oyugi t/a Meroka & Company Advocates; Tony (Objector) (Environment & Land Case E166 of 2023) [2025] KEELC 696 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Validity of the replying affidavit
The replying affidavit was not defective; the defect of an undated jurat was cured and a jointly sworn affidavit is permissible
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.
Objector's ownership of the attached motor vehicle
The Objector proved legal ownership of KDL 502Q through the logbook and car hire agreement
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.
Breach of Rule 12(b) of the Auctioneers Rules
The auctioneer breached Rule 12(b) by failing to adduce evidence of proclamation, specifically Sale Form 2
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.
Costs against the auctioneer personally
The claim for costs against the auctioneer failed
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.
Legal principles established
#- 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
#- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.