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ELCDismissedNot stated in the judgment (application dated 2/4/2025 in a suit pending since 2024)· [2025] KEELC 5702 (KLR)

Odundo v Kukam Limited & another (Environment and Land Case 693 of 2016) [2025] KEELC 5702 (KLR)

Environment and Land Court (not expressly named in the excerpt; presided over by a Judge in Nairobi)
31 July 2025
3,365 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that a company that lost a case cannot use objection proceedings to block auction of its own goods—only non-parties with a real ownership claim can.

What this practically means

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Executive summary

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The Defendants/Applicants, through their Director Rahab Karei Mukiama, moved the court by Notice of Motion dated 2/4/2025 seeking a stay of execution of the judgment delivered on 15/4/2024 and setting aside of proclamation notices issued by Phillips International Auctioneers. The application followed the striking out, on 27/3/2025, of an earlier application for non-compliance with Order 9 Rule 9 of the Civil Procedure Rules, a defect since cured by a consent between the outgoing and incoming advocates. The Plaintiff/Respondent opposed, arguing the application was a disguised review, res judicata, sub judice given pending Court of Appeal applications (COACIVAPP E521 of 2024 and E539 of 2024), and fatally defective for bypassing Order 22 Rule 51 objection procedure. The court held the application competent: the Order 9 Rule 9 defect had been cured, the stay issue was not previously determined with finality, and stay may be sought from either the court appealed from or appealed to. However, on the merits the court found no valid objection proceedings: the application was mounted by a Director of the judgment-debtor Defendants who cannot be objectors against execution of a decree against themselves. Further, the Applicants bore the burden of proving a legal or equitable interest in the proclaimed goods, which they failed to discharge, attaching no proof of ownership of the household items allegedly proclaimed. Execution against a judgment debtor being lawful, and the stay prayer failing to specify the eventuality pending which it was sought, the court dismissed the application dated 2/4/2025 with costs to the Plaintiff/Respondent.

Key legal issues

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01

Competence of the application despite the earlier striking out of the application dated 10/1/2025 for non-compliance with Order 9 Rule 9

Holding

The application was competent: the Applicants had since filed a consent between outgoing and incoming advocates complying with Order 9 Rule 9, so current advocates are properly on record and the application is not a disguised review; nor is it res judicata or sub judice.

Reasoning

The court noted that its Ruling of 27/3/2025 struck out the earlier application on a technical ground without determining the merits, and expressly left the applicants liberty to file a formal application. The subsequent consent cured the Order 9 Rule 9 defect, and stay could properly be sought in this court notwithstanding the parallel Court of Appeal application.

p. 4
02

Whether valid objection proceedings under Order 22 Rule 51 were before the Court

Holding

No. The application was mounted by a Director of the judgment-debtor Defendants who cannot be objectors against execution of a decree against themselves; the proceedings were premature, misconceived, invalid and bad in law.

Reasoning

Order 22 Rule 51 proceedings are a special post-judgment category for persons who were not parties to the suit and who claim a legal or equitable interest in attached property. The affidavit was sworn by Rahab Karei Mukiama as a Director, not in her personal capacity, so no proper objection proceedings existed. The court would have treated a missing notice of objection as a mere omission, but the applicants were not objectors at all.

p. 5
03

Whether the proclamation notice should be set aside and stay of execution granted

Holding

No. Execution against a judgment debtor is lawful, and the Applicants failed to prove ownership of the proclaimed goods or any basis under Order 22 Rule 52 for a stay.

Reasoning

An objector must demonstrate sufficient proprietary, legal or equitable interest in the attached property. The Director alleged the goods were personal items that could not belong to juristic persons but attached no proof of ownership and did not address Order 22 Rule 51. The stay prayer was also defective as it did not specify the eventuality pending which stay was sought, and a stay application was pending in the Court of Appeal.

p. 7

Legal principles established

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  • Defendants/judgment-debtors cannot mount objection proceedings against execution of a decree issued against them; only a third party with a legal or equitable interest in the attached property may do so under Order 22 Rule 51.
  • An objector bears the burden of proving entitlement to, or a legal or equitable interest in, the attached property before it can be released from attachment.
  • Stay of execution pending appeal may lawfully be sought either from the court being appealed from or the court being appealed to; parallel applications are not sub judice.

Court orders

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  1. 1.The Defendants' Notice of Motion application dated 2/4/2025 is not merited and is dismissed
  2. 2.Costs of the application to the Plaintiff/Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 50(1)
  • Civil Procedure ActSections 1A, 1B, 3A, 63(e), 34
  • Civil Procedure Rules, 2010Order 9 Rule 9
  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Civil Procedure Rules, 2010Order 22 Rules 51, 51(1), 51(3), 52

Cases cited (4)

  • Celina Trading LLC v Ngao Credit Limited & another; Njoroge (Objector); Auctioneers (Interested Party)
    [2021] KEHC 18 (KLR)
  • Gikunji & 3 others v Nyaga & 3 others; Wahome & 16 others (Objector)
    [2023] KEELC 16395 (KLR) (16 March 2023) (Ruling)
  • Arun C. Sharma v Ashana Raikundalia T/A A. Raikundalia & Co. Advocates & 4 others
    [2014] eKLR
  • Precast Portal Structures v Kenya Pencil Company Ltd & 2 Others
    [1993] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, 2010; Section 34 of the Civil Procedure Act on questions of execution

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, "Odundo v Kukam Limited & another (Environment and Land Case 693 of 2016) [2025] KEELC 5702 (KLR)", Case Analysis (2025). Not stated in the judgment (application dated 2/4/2025 in a suit pending since 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5702/eng@2025-07-31

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