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ELRCDismissedObjector's Notice of Motion dated 2nd December 2013 (objection proceedings in the Claimant's suit)· [2014] KEELRC 948 (KLR)

Catherine Kinyany v Mcl Saatchi & Saatchi & another [2014] KEELRC 948 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
7 April 2014
1,672 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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Marketing Communications Ltd, an objector in execution proceedings, moved the court by notice of motion dated 2nd December 2013 seeking a temporary injunction restraining the Claimant/Decree Holder and Keysian Auctioneers from attaching goods proclaimed in execution of the decree, plus orders that the auctioneer's fees and costs be borne by the decree holder. The Objector asserted that the proclaimed goods belonged to it and not to the judgment debtor, that it was not a party to the suit, and that the proclamation violated its constitutional right to property. It relied on receipts and invoices as proof of ownership. The Claimant filed a notice of preliminary objection and grounds of opposition, arguing the application was incompetent for failure to give notice under Order 22 Rules 51(2) and 52 of the Civil Procedure Rules, and that no nexus was shown between the proclaimed goods and the evidence of ownership. In a ruling delivered on 7th April 2014, Justice M. Onyango framed twin issues: the relationship between the judgment debtor and the Objector, and whether the Objector proved ownership of the goods in exclusion of the judgment debtor. The court found that the two companies shared common directorship, premises and postal address, and that invoices bearing 'MCL' were referable to both companies. Although the Objector invoked its separate legal personality, the court held the difference to be on paper only and found the objection proceedings an abuse of court process. The application was dismissed with costs to the Claimant.

Key legal issues

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01

Whether the Objector is a distinct legal entity from the judgment debtor

Holding

The court found the Objector and the judgment debtor to be essentially the same person operating under different registered names, notwithstanding separate incorporation

Reasoning

The two companies share common directorship - Nathaniel Mbugua Kangethe is Chairman of both - the same office, the same postal address as appeared in the Claimant's contract, and overlapping initials (MCL). The difference between them appears to be on paper only, and the Objector never explained its relationship with the judgment debtor despite being put on notice.

p. 4
02

Whether the Objector proved ownership of the proclaimed goods in exclusion of the judgment debtor

Holding

No; the receipts and invoices were ambiguous (many addressed simply to MCL) and did not cover all the proclaimed items

Reasoning

The receipts and invoices bore names referable to both companies; some items in the proclamation - office desks, filing cabinets, reception desk, internet gadgets - were not covered by any receipt. It was never alleged that the proclamation was carried out at the wrong premises, and the Respondent was shown to operate there. Ownership in exclusion of the judgment debtor was therefore not proved.

p. 4
03

Whether the objection proceedings were defective for failure to give notice under Order 22 Rules 51(2) and 52

Holding

The court did not strike out the application on this procedural ground; it dismissed the objection on its merits as an abuse of process

Reasoning

The Claimant relied on Ngenye Kariuki v Kheira Omar Maalim to submit that failure to give notice rendered the application incompetent. The court did not rule on that preliminary point, instead addressing the two substantive twin issues and finding the proceedings an abuse of court process.

p. 3

Legal principles established

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  • Where an objector in execution proceedings and the judgment debtor share common directorship, premises and address, and the goods' purchase documents are addressed to a name common to both, the objector has not proved ownership of the goods in exclusion of the judgment debtor
  • Objection proceedings brought by a party whose identity with the judgment debtor is essentially one and the same constitute an abuse of court process

Court orders

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  1. 1.The objection proceedings were dismissed
  2. 2.Costs awarded to the Claimant

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 51(2)
  • Civil Procedure RulesOrder 22 Rule 52

Cases cited (5)

  • K-Rep Bank Ltd. V Basilio Pascal & 2 others
    [2012] eKLR
  • Scan house Press Ltd V Times NRW Services Ltd
    [2010] eKLR
  • Equatorial Commercial Bank Ltd V Bubacon Agencies Ltd & 3 others
    [2013] eKLR
  • Ngenye Kariuki V Kheira Omar Maalim
    [2011] eKLR
  • Charles Muraya Ndegwa V Nahashon M. Gatere & 2 others
    [2006] eKLR
Jurisdiction invoked
Objection proceedings under Order 22 Rules 51 and 52 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, "Catherine Kinyany v Mcl Saatchi & Saatchi & another [2014] KEELRC 948 (KLR)", Case Analysis (2014). Objector's Notice of Motion dated 2nd December 2013 (objection proceedings in the Claimant's suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/948/eng@2014-04-07

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