Josphat Munke Ole Mpoe v David Waiganjo Koinange & another [2015] KEELRC 810 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Enforceability of unregistered hire purchase agreement
The unregistered hire purchase agreement could not be recognised by the Court and was unenforceable against the attachment
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.
Attachment of jointly owned property
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
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.
Timing of objection proceedings
The objection proceedings were an afterthought because the Objector did not explain when it became aware of the proclamation or attachment
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.
Legal principles established
#- 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
#- 1.The objection motion filed in Court on 15 June 2015 is dismissed
- 2.Costs of the objection proceedings to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court, Cause No. 365 of 2013 (execution/objection proceedings arising from decree awarded by this Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.