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ELRCDismissedCause No. 365 of 2013· [2015] KEELRC 810 (KLR)

Josphat Munke Ole Mpoe v David Waiganjo Koinange & another [2015] KEELRC 810 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
3 July 2015
715 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 ruled that an unregistered hire purchase agreement cannot protect a vehicle from being attached to pay a debtor's judgment debt.

What this practically means

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Executive summary

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This ruling by Radido J of the Employment and Labour Relations Court at Nakuru determines objection proceedings filed by CFC Stanbic Bank Ltd, the Objector, against the attachment in execution of a tractor (registration KTCB 393L) in satisfaction of a decree of Kshs 5,400,000 awarded to the Claimant against the Respondent, David Waiganjo Koinange. The Objector asserted joint ownership of the tractor with the Respondent, claiming it had financed the purchase and secured its interest through a Hire Purchase Agreement, and sought that the attachment be lifted unconditionally. The Claimant opposed, conceding joint registered ownership but contending that the Respondent was the beneficial owner, that the Hire Purchase Agreement was unregistered and therefore unenforceable under section 5 of the Hire Purchase Act, that jointly owned property could be attached and sold under section 44(1) of the Civil Procedure Act and Order 22 rule 41 of the Civil Procedure Rules, and that the objection, filed months after the March 2015 proclamation, was an afterthought. The Court held that an unregistered hire purchase agreement is unenforceable and should not be taken cognizance of, that jointly owned property may be attached and sold in execution against one owner (with the joint owner retaining remedies against the co-owner), and that the objection was an afterthought. The objection motion was dismissed with costs to the Claimant.

Key legal issues

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01

Enforceability of unregistered hire purchase agreement

Holding

The unregistered hire purchase agreement could not be recognised by the Court and was unenforceable against the attachment

Reasoning

The copy of the hire purchase agreement annexed to the objection did not show whether it was registered, and it was not clear whether stamp duty was paid. Adopting Geminia Insurance and Fidelity Commercial Bank decisions, the Court held that an unregistered hire purchase agreement should not be taken cognizance of and is unenforceable.

p. 2
02

Attachment of jointly owned property

Holding

Jointly owned property may be attached and sold in execution of a decree against one of the owners, and the objector's interest would not disappear with the sale

Reasoning

The Objector did not point to any statutory or legal principle prohibiting attachment of jointly owned property, while the Claimant relied on section 44(1) of the Civil Procedure Act and Order 22 rule 41 of the Civil Procedure Rules. The Court found comfort in Imperial Bank Ltd v Treadsetters Ltd, holding that a joint owner would have a remedy in law against the co-owner.

p. 2
03

Timing of objection proceedings

Holding

The objection proceedings were an afterthought because the Objector did not explain when it became aware of the proclamation or attachment

Reasoning

The tractor had been proclaimed on 2 March 2015, yet the objection was filed on 15 June 2015. Although the Objector alleged non-service of the proclamation notice, it did not disclose or explain when it became aware of the proclamation or attachment. The Court agreed with the Claimant that the objection was an afterthought.

p. 2

Legal principles established

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  • A Court should not take cognizance of a hire purchase agreement which has not been registered; such an agreement is unenforceable
  • Jointly owned property can be attached and sold in execution of a decree against one of the owners, and the joint owner retains a remedy in law against the co-owner

Court orders

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  1. 1.The objection motion filed in Court on 15 June 2015 is dismissed
  2. 2.Costs of the objection proceedings to the Claimant

Authorities

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Legislation

  • Hire Purchase Actsection 5
  • Civil Procedure Actsection 44(1)
  • Civil Procedure RulesOrder 22 rule 41

Cases cited (3)

  • Geminia Insurance Co. Ltd v Sedco Consultants Ltd & Ar
    (2013) eKLR
  • Fidelity Commercial Bank Ltd v Agritools Ltd & 3 Ors
    (2004) eKLR
  • Imperial Bank Ltd v Treadsetters Ltd & Ar
    (2012)
Jurisdiction invoked
Employment and Labour Relations Court, Cause No. 365 of 2013 (execution/objection proceedings arising from decree awarded by this Court)

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 & another [2015] KEELRC 810 (KLR)", Case Analysis (2015). Cause No. 365 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/810/eng@2015-07-03

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