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ELRCDismissedCause No 895 of 2012· [2018] KEELRC 2184 (KLR)

Luka Lunayo v NYPD Restaurant & 2 others [2018] KEELRC 2184 (KLR)

Employment and Labour Relations Court
19 March 2018
HWHellen Wasilwa
1,032 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 dismissed a business owner's bid to stop auction of attached goods because he could not prove with receipts that the goods were his.

What this practically means

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Executive summary

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This was an objection to attachment and sale of property in execution of a decree, brought under Order 22 Rules 50 and 51 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act by Charles Goko Waithaka, a sole proprietor trading as Ice on Fire Bar and Restaurant. The Objector sought an injunction restraining the auctioneer from proclaiming, attaching or selling goods said to be his, and repayment of Kshs. 484,000/= paid towards a decree of Kshs. 414,251/= obtained by the Claimant against the Judgment Debtor, NYPD Restaurant. The Objector contended he was a stranger to the suit and that the attached goods were his, and that the Judgment Debtor had never been registered as a company. The Decree Holder opposed, averring the Objector had traded as NYPD Restaurant (formerly Zigin Restaurant) and only changed the name after judgment to evade execution; that no objection was raised to proclamations in July and September 2017; and that the Objector had previously proposed settlement by installments with cash and postdated cheques. Justice Hellen Wasilwa found the nexus between the Objector's business and NYPD Restaurant unclear but accepted the Decree Holder's account, and held that the Objector had failed to annex receipts or any documents proving ownership of the attached goods. The court held it was the Objector's duty to prove the attached goods were his, which he had not done. The objection proceedings were dismissed, execution was ordered to proceed, and costs were awarded to the Decree Holder.

Key legal issues

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01

Whether the Objector proved ownership of the proclaimed and attached goods

Holding

The Objector failed to prove ownership; no receipts or documents of ownership were annexed, so the objection proceedings were dismissed.

Reasoning

The court noted that while the Objector ran Ice on Fire Bar and Restaurant under a business permit, the nexus between that business and the Judgment Debtor, NYPD Restaurant, was not established. The Decree Holder averred the Objector previously traded as NYPD Restaurant, employed him, and never objected to the July and September 2017 proclamations. Without receipts proving ownership of the attached items, the Objector discharged neither the evidential nor legal burden.

p. 2

Legal principles established

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  • In objection proceedings, the Objector bears the burden of proving that the attached goods belong to him and not the Judgment Debtor.

Court orders

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  1. 1.The Objector's proceedings are dismissed
  2. 2.Execution to proceed
  3. 3.Costs to the Decree Holder

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rules 50 & 51
  • Civil Procedure ActSection 3A
  • Registration of Business ActNot specified
Jurisdiction invoked
Order 22 Rules 50 & 51 of the Civil Procedure Rules (2010) and Section 3A of the Civil Procedure Act, Cap 21 Laws of Kenya

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, "Luka Lunayo v NYPD Restaurant & 2 others [2018] KEELRC 2184 (KLR)", Case Analysis (2018). Cause No 895 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2184/eng@2018-03-19

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