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ELRCPartially AllowedCause No 1902 of 2016· [2019] KEELRC 73 (KLR)

Donald Eliakim Ohon v Habo Group of Companies Limited & another [2019] KEELRC 73 (KLR)

Employment and Labour Relations Court
22 November 2019
MOMaureen Onyango
2,259 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 threw out a company's bid to save attached goods because it brought no documents proving it owned them.

What this practically means

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Executive summary

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Following a judgment delivered on 19th October 2018 and a decree issued on 5th March 2019 in favour of the Claimant, execution commenced and warrants of sale were issued to Nexttgen Auctioneers for Kshs.441,200/=. Goods were proclaimed and attached on 21st May 2019 at premises the Auctioneer averred belonged to the Respondent/Judgment Debtor, Habo Group of Companies Limited. GTEC Company Limited, a non-party, filed a notice of motion dated 22nd May 2019 seeking release of the attached goods upon deposit of the decretal sum, stay of execution, and lifting of the attachment, contending it was not a party to the suit. The court directed an interim deposit of Kshs.376,915 for release of the goods, later topped up to Kshs.600,000 following the Claimant's ex parte application of 24th May 2019. At the inter partes hearing, the Objector argued that proclamation at its premises sufficed to prove ownership and that no attempt had been made to lift the corporate veil; the Claimant countered that the Objector had proved neither ownership nor interest, that both companies were owned by Hezron Awiti Bolo, and sought release of the deposit. The court framed three issues and held that an objector must prove ownership of the attached goods; the Objector had attached no documents of ownership or beneficial interest and had not disputed that the attachment occurred at the Judgment Debtor's offices. The Objector's application was dismissed with costs, and the unopposed Claimant's application was allowed, with the deposit released to Mbiriri Ngugi & Company Advocates and costs awarded to the Claimant.

Key legal issues

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01

Whether the Objector proved ownership of the attached goods

Holding

The Objector failed to prove ownership or beneficial interest; proclamation at its premises is not sufficient proof

Reasoning

The court held that an objector must prove ownership of the goods subject to execution. The Objector attached no documents proving ownership or beneficial interest and did not contest the averment that the attachment was done at Habo Group of Companies Limited offices, where pleadings in the suit had been served on the judgment debtor. Its reliance on the stamped proclamation was rejected.

p. 4
02

Whether the Objector's application dated 22nd May 2019 is merited

Holding

Not merited; dismissed with costs

Reasoning

Since the Objector failed to prove ownership of the attached goods, the application for release of the goods, stay of execution and lifting of the attachment could not stand. The claimant's contention that the Objector was being used by the judgment debtor to delay execution was consistent with the Objector's own failure of proof.

p. 4
03

Whether the Claimant's application dated 24th May 2019 is merited

Holding

Allowed in terms of prayers 5 and 6; the deposit to be released to the claimant's advocates

Reasoning

The claimant sought release of the money deposited in court by the Objector to his advocates in satisfaction of the decree. The application was unopposed, and in the absence of any objection the court allowed it in terms of prayers 5 and 6, with costs to the claimant.

p. 4

Legal principles established

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  • In objection proceedings the objector must prove ownership of the goods subject to execution to succeed in having the attachment lifted
  • A proclamation stamped at premises is not, without more, proof of ownership of the proclaimed goods

Court orders

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  1. 1.The Objector's application dated 22nd May 2019 is dismissed with costs
  2. 2.The claimant's application dated 24th May 2019 is allowed in terms of prayer 5 and 6
  3. 3.The amount deposited in court by the Objector be immediately released to the claimant's advocates Mbiriri Ngugi and Company Advocates
  4. 4.The Objector to pay the claimant's costs of the Application

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 45 Rule (1) and (2)
  • Companies ActCap. 486

Cases cited (2)

  • Akiba Bank Limited Vs Jetha & Sons Limited
    (2005) eKLR
  • Peter Morwabe & 3 Others Vs E-smart College Limited & Another
    (2015) eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over execution/objection proceedings arising from a decree in a cause before it; application brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 22 Rule 22 and Order 45 Rule (1) and (2) 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, "Donald Eliakim Ohon v Habo Group of Companies Limited & another [2019] KEELRC 73 (KLR)", Case Analysis (2019). Cause No 1902 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/73/eng@2019-11-22

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