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ELRCDismissedCause No 868 of 2017· [2023] KEELRC 805 (KLR)

Mudzomba v Bafangih Bakeries Limited; Ali (Objector) (Cause 868 of 2017) [2023] KEELRC 805 (KLR)

Employment and Labour Relations Court
28 March 2023
MMM. Mbarũ
2,167 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed an attempt to stop auction of bakery equipment because the objector could not prove he actually owned it.

What this practically means

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Executive summary

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Following a judgment delivered on 27th May, 2022, the claimant commenced execution through Makini Auctioneers Agencies, who on 25th July, 2022 proclaimed moveable assets including bakery equipment at premises associated with the respondent, Bafagih Bakeries Limited. Abubakar Alwi Alia filed a notice of objection under Order 22 rules 51 and 52 seeking a stay of execution, setting aside of the proclamation, and a permanent restraint against attachment and sale of the proclaimed assets apart from Motor Vehicle KCN 100N. He asserted he had purchased the bakery equipment from Kenya Industrial Estates Limited, accepting an offer in 2000 and paying in 2005, and had since lent the equipment first to the respondent and later to Almo Bakeries Limited, contending the goods were not owned by the judgment debtor. The claimant opposed, arguing there was no letter of offer, no particulars of the items purchased, no title documents or receipts, and that the respondent remained a live corporate entity notwithstanding the death of its sole director, as shown by a cheque issued in part payment of the decretal sum. The court, adopting the principles in Stephen Kiprotich Koech and Arun C Sharma, held that the objector bore the burden of proving a legal or equitable interest in the attached property at the date of attachment. The acceptance offer was held not to be primary proof of ownership and lacked particulars matching the proclaimed items. The court also found the cheque issuance demonstrated the respondent was still trading and that no evidence supported the claim it had gone under. The application dated 5th October, 2022 was dismissed with costs, the judgment recording that the respondent shall bear all costs.

Key legal issues

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01

Burden of proof in objection proceedings under Order 22 rule 51

Holding

The objector bears the burden of proving legal or equitable interest in the attached property, which he failed to discharge

Reasoning

The court adopted the principle that objection proceedings exist to allow an objector show a legal or beneficial interest at the date of attachment. The objector relied only on a letter of acceptance of an offer to purchase from Kenya Industrial Estates Limited, which did not identify the items purchased or connect them to the proclaimed goods. Without invoices, receipts or title documents, the objection failed.

p. 4
02

Evidential value of the acceptance offer

Holding

The acceptance offer lacked particulars and could not prove ownership of the specific proclaimed items

Reasoning

The court compared the letter of acceptance with the itemised proclamation notice (mixers, ovens, generator, trolleys etc.) and found no evidence linking the annexure to those items, so no legal or equitable interest was established.

p. 4
03

Status of the respondent company after its director's death

Holding

The respondent remained a live corporate entity capable of paying the decree; the claim that it had gone under was unsupported

Reasoning

The court noted the respondent issued a cheque after the director's death in part payment of the decretal sum, proving it was still trading, and that formal insolvency processes, not the objector's assertions, establish that a company has gone under.

p. 5

Legal principles established

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  • In objection proceedings the objector bears the burden of proving a legal or equitable interest in the attached property at the date of attachment
  • A letter of acceptance of an offer to purchase is not, without particulars linking it to the attached items, proof of ownership of proclaimed goods
  • The death of a company's director does not end the corporate entity, which remains capable of meeting its obligations

Court orders

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  1. 1.Application dated 5th October, 2022 dismissed
  2. 2.The respondent shall bear all costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 rule 1
  • Civil Procedure RulesOrder 42 rule 6
  • Civil Procedure RulesOrder 22 rule 51
  • Civil Procedure RulesOrder 22 rule 52

Cases cited (6)

  • Arun C Sharma v Ashana Raikudalia t/a A. Raikundalia & Co. Advocates & 4 others
    [2014] eKLR
  • Precast Postal Structures v Kenya Pencil Company Ltd & 2 others
    [1993] eKLR
  • Francis Ndirangu Mwangi v William Kiplangat Sigilai & 2 others
    [2018] eKLR
  • Duncan Kabui v Samuel Bede Igembo & another
    [2014] eKLR
  • Randon S A Implementors Eparticipacoes v RT (East Africa) Limited; Jovan H Kariuki (Applicant); Multiple Hauliers (EA) Limited & another (Objectors)
    [2021] eKLR
  • Stephen Kiprotich Koech v Edwin K. Barchilei; Joel Sitienei (Objector)
    [2019] eKLR
Jurisdiction invoked
Original jurisdiction; objection proceedings under Order 22 rules 51 and 52 of the Civil Procedure Rules in execution of the court's judgment dated 27th May, 2022

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, "Mudzomba v Bafangih Bakeries Limited; Ali (Objector) (Cause 868 of 2017) [2023] KEELRC 805 (KLR)", Case Analysis (2023). Cause No 868 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/805/eng@2023-03-28

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