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ELRCDismissedNot stated in the judgment (ruling on Objector's Notice of Motion dated 26th October 2020)· [2021] KEELRC 1625 (KLR)

Research Foundation of Kenya v Patrisio Njiru Njeru; Stephen Njeru Chiengo (Objector/Applicant) [2021] KEELRC 1625 (KLR)

Employment and Labour Relations Court
27 May 2021
HWHellen Wasilwa
2,446 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 man's bid to protect household goods and cows from attachment because he produced no receipts proving they were his.

What this practically means

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Executive summary

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This ruling by Hellen Wasilwa, J of the Employment and Labour Relations Court, delivered virtually on 27th May 2021, determines an objection to attachment brought by Stephen Njeru Chiengo, the objector. Following a decree obtained by the claimant against the respondent judgment debtor, warrants of attachment were issued on 6th July 2020 and Hegeons Auctioneers proclaimed household goods and 4 cows at the objector's residence on 30th September 2020. The objector sought lifting of the attachment, asserting beneficial and legal ownership of the proclaimed goods and denying any agency or employment relationship with the judgment debtor. The claimant opposed, arguing the goods were identified as the respondent's property, that the objector produced no evidence of ownership, that the objector and respondent shared a father-son relationship and the same firm of advocates, and that the objection was a ploy to defeat execution of a decree now accruing interest at over Kshs 15 million. The parties filed written submissions, the objector relying on authorities on burden of proof and hearsay, and contesting the auctioneer's licensing and description of goods; the claimant relying on authorities placing the burden of proof on the objector. The court held that under Order 22 Rule 51 of the Civil Procedure Rules the objector was obliged to demonstrate his claim by a supporting affidavit, including documentary proof such as receipts or title deeds. Finding only bare averments of ownership, the court dismissed the objection, allowed execution to proceed and awarded costs to the claimant.

Key legal issues

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01

Burden of proof in objection to attachment proceedings

Holding

The objector bore the burden of proving that the attached goods belonged to him and, having produced only bare averments without documentary evidence, failed to discharge it.

Reasoning

The court applied Order 22 Rule 51 of the Civil Procedure Rules, which obliges an objector to set out in a supporting affidavit the nature of his claim to the attached property. Drawing on Precast Portal Structures v Kenya Pencil Company Ltd, the court held the burden lies on the objector. The objector's affidavit merely asserted ownership without purchase receipts, title documents or other proof, and the objection therefore collapsed.

p. 4
02

Compliance with Order 22 Rule 51 Civil Procedure Rules

Holding

The operational effect of Order 22 Rule 51 is that the objector must demonstrate his claim through a supporting affidavit, including documentary proof of ownership where available.

Reasoning

The court extracted Order 22 Rule 51(1)-(3), noting that the notice of objection must be accompanied by an affidavit setting out the nature of the claim. In the court's view, demonstrating the nature of the claim would include production of purchase receipts, title deeds or lease agreements. Since the objector only averred that the goods were his without evidence, the mandatory requirement was not satisfied and the application failed on this limb.

p. 4

Legal principles established

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  • An objector to attachment bears the burden of establishing ownership or a legal or equitable interest in the attached property, ordinarily by documentary evidence such as receipts or title documents.

Court orders

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  1. 1.Dismissal of the objector's application dated 26th October 2020
  2. 2.Liberty for execution to proceed against the proclaimed goods
  3. 3.Costs of the application awarded to the claimant

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 51
  • Civil Procedure RulesOrder 51 Rules 1, 2 & 3
  • Auctioneers Act No. 5 of 1996Section 20(1)(b)
  • Auctioneers Rules 1997Rule 3(1)
  • Auctioneers Rules 1997Rule 11(1)(a)

Cases cited (8)

  • Patrick Kingori Warugongo v James Nderitu & another
    [2014] eKLR
  • Kenya Commercial Bank Limited v Thomas Wandera Oyalo
    [2005] eKLR
  • Clement Kungu Waibara v Annie Wanjiku Kibe & Another
    [2017] eKLR
  • Precast Portal Structures v Kenya Pencil Company Ltd & 2 others
    [1993] eKLR
  • Stephen Kiprotich Koech v Edwin K. Barchilei; Joel Sitienei (Objector)
    [2019] eKLR
  • Arun C. Sharma v Ashana Raikundalia T/A A. Raikundalia & Co. Advocates & 4 others
    [2014] eKLR
  • Mercy Njambi v Othaya Villas Co Limited & another
    [2020] eKLR
  • Paul Otieno T/a Paul Mungla & Co advocates v Anne Achieng Ajanja
    [2015] eKLR
Jurisdiction invoked
Original execution/objection jurisdiction under Order 22 Rule 51 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Research Foundation of Kenya v Patrisio Njiru Njeru; Stephen Njeru Chiengo (Objector/Applicant) [2021] KEELRC 1625 (KLR)", Case Analysis (2021). Not stated in the judgment (ruling on Objector's Notice of Motion dated 26th October 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1625/eng@2021-05-27

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