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ELRCPartially AllowedNot stated in the judgment· [2015] KEELRC 115 (KLR)

Josphat Munke Ole Mpoe v David Waiganjo Koinange [2015] KEELRC 115 (KLR)

Employment and Labour Relations Court of Kenya
9 December 2015
DMD.K.Njagi Marete
1,722 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered a judgment debtor to hand over a vehicle he claimed to have sold, confirming that hiding property doesn't defeat debt recovery.

What this practically means

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Executive summary

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This was an application by the claimant/decree holder dated 23rd June 2015 seeking orders to compel the respondent/judgment debtor, David Waiganjo Koinange, to produce motor vehicle KBQ 635U – Volkswagen Double Cabin Pick-up for attachment by Nasioki Auctioneers, and in default, warrants of arrest and detention for up to thirty days. The claimant held a decree for approximately Kshs. 4.6 million granted on 6th February 2015. Execution proceedings followed; the vehicle was proclaimed on 2nd March 2015 but could not be traced, the claimant alleging the respondent had removed and hidden it to frustrate execution. A motor vehicle search showed the vehicle registered solely in the respondent's name. The respondent opposed the application, asserting he had sold the vehicle to Rita Nduku Muthusi on 9th October 2014 and denied service of the proclamation notice; he later asserted the vehicle belonged to Pal-City Grill and Entertainment. The claimant relied on Section 8 of the Traffic Act (registration as prima facie proof of ownership), Order 22 Rule 21 of the Civil Procedure Rules (objection to attachment), Rule 14 of the Auctioneers Rules 2010 (removal or alienation of proclaimed goods as an offence) and Section 47 of the Civil Procedure Act (private transfers of attached property void). The court found the case to be one of a decree holder denied the fruits of judgment by the judgment debtor's conduct, held that the rule of law must be upheld, and allowed the application. The respondent was directed to produce the vehicle to the auctioneers within seven days, compliance to be before the Deputy Registrar by 16th December 2015, with mention on 17th December 2015 and costs to the respondent. Arrest and detention orders were not granted.

Key legal issues

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01

Ownership of motor vehicle KBQ 635U

Holding

Registration is prima facie proof of ownership; the respondent failed to displace the presumption despite the alleged sale to Rita Nduku Muthusi

Reasoning

The claimant relied on Section 8 of the Traffic Act deeming the registered person the owner unless the contrary is proved. A search conducted on 25th February 2015 and a further search after filing showed the vehicle still registered in the respondent's name. The alleged purchaser did not file an objection to the attachment under Order 22 Rule 21 of the Civil Procedure Rules, so her alleged interest was not before the court to defeat execution.

p. 3
02

Removal or alienation of proclaimed/attached property

Holding

Removing, hiding or alienating proclaimed property to defeat execution is an offence and a private transfer after attachment is void

Reasoning

The auctioneers proclaimed the vehicle on 2nd March 2015 but could not trace it, having been hidden by the respondent. Rule 14 of the Auctioneers Rules 2010 penalises removal or alienation of proclaimed goods, and Section 47 of the Civil Procedure Act renders private transfers of attached property void against the attachment. The court held these provisions supported the claimant's case.

p. 3

Legal principles established

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  • A judgment debtor who removes, hides or alienates proclaimed property to frustrate execution must be compelled to produce it; the rule of law requires that a decree holder enjoy the fruits of judgment
  • A private transfer of attached property contrary to the attachment is void against claims enforceable under the attachment (Section 47, Civil Procedure Act)

Court orders

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  1. 1.The Respondent/Judgment Debtor David Waiganjo Koinange is directed to appear before court to produce and/or furnish motor vehicle KBQ 635U – Volkswagen Double Cabin Pick-up to Nasioki Auctioneers for attachment within seven (7) days from the date of the order
  2. 2.Compliance with the order of production/furnishing not later than 16th December, 2015 at 1000 hours
  3. 3.The exercise of compliance shall be before the Deputy Registrar of the court
  4. 4.Mention on 17th December, 2015 for further orders and directions
  5. 5.Costs of the application to be borne by the Respondent/Judgment Debtor

Authorities

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Legislation

  • Traffic ActSection 8
  • Civil Procedure ActSection 47
  • Civil Procedure RulesOrder 22 Rule 21
  • Auctioneers Rules 2010Rule 14
Jurisdiction invoked
Original execution jurisdiction of the court; application under certificate of urgency pursuant to the Civil Procedure Act and 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, "Josphat Munke Ole Mpoe v David Waiganjo Koinange [2015] KEELRC 115 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/115/eng@2015-12-09

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