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ELRCDismissedELRC Appeal from Malindi CM ELRC E024 of 2022· [2024] KEELRC 2687 (KLR)

Thoya v Ennio Limited (Appeal E014 of 2024) [2024] KEELRC 2687 (KLR)

Employment and Labour Relations Court
31 October 2024
MMM. Mbarũ
1,338 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 confirmed that auctioning goods to recover a work judgment fails if those goods belong to someone other than the debtor.

What this practically means

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Executive summary

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This was an appeal to the Employment and Labour Relations Court at Mombasa against a ruling of the learned magistrate in Malindi CM ELRC E024 of 2022 delivered on 13 March 2024. The appellant, a former employee, had obtained a judgment of Kshs 458,900 for unfair termination plus a certificate of costs of Kshs 88,800 against Devon Management Limited t/a Hotel Barracuda Inn, and obtained warrants of attachment and a proclamation for Kshs 547,700. Ennio Limited filed objection proceedings dated 7 September 2023 claiming the attached goods were its property, distinct from the judgment debtor, supported by a Certificate of Title for Plot No 20 Watamu held by its director Giuseppe Bonasera. The magistrate upheld the objection, finding the objector had proved ownership of the goods on a balance of probabilities. On appeal, the appellant argued the magistrate failed to require documentary proof of ownership of the goods, ignored his replying affidavit, and should have lifted the corporate veil since the objector and judgment debtor shared the same postal address. The respondent maintained it had legal and equitable interests in the proclaimed properties and that the appellant's own affidavit confirmed it handed over running of the hotel to the judgment debtor. The Court agreed with the magistrate: the objector admitted ownership in its application, the appellant's averments gave credence to the objection, and the magistrate had considered both parties' material. Applying Palace Investments and Joel Muga Opinja, the court found the appeal without merit, dismissed it, and ordered each party to bear its own costs.

Key legal issues

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01

Ownership of attached goods in objection proceedings

Holding

The respondent proved on a balance of probabilities that it held legal and equitable interest in the premises and moveable goods; it admitted ownership in the objection application, and the appellant's own replying affidavit corroborated this

Reasoning

The objection application dated 7 September 2023 admitted ownership of the proclaimed goods at Plot No 20 Watamu, supported by a Certificate of Title and confirmation of the director's registered ownership. The appellant's replying affidavit averred that the objector handed over running of the hotel to the judgment debtor, giving credence to the objection. The magistrate's analysis considered both parties' material.

p. 3
02

Whether the magistrate ignored the appellant's evidence

Holding

The magistrate considered the appellant's replying affidavit; the findings could not be faulted

Reasoning

The court found the trial court's analysis took into account the records filed by the objector and the appellant's replying affidavit dated 9 November 2023. Grounds 1 to 3 of the appeal therefore failed, and the ruling upholding the objection was affirmed.

p. 3

Legal principles established

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  • Execution proceedings must relate to the judgment debtor and not a third party
  • A party with legal or equitable interest in attached property is justified in taking out objection proceedings

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear its own costs of the appeal

Authorities

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Legislation

  • Civil Procedure CodeSection 44(1)

Cases cited (5)

  • Zingo Investment Limited v Mirema Enterprises Limited
    [2015] KECA
  • Mutai v Kisa & another; Kipkoech & another (Objector)
    ELRC Cause No E002 of 2020
  • Rishi Prakash Aggarwal v Scanard (Scan Group) Kenya Limited
    [2020] eKLR
  • Palace Investments Limited v Geoffrey Kariuki Mwenda & Dollar Auctions
    [2015] KECA 616 (KLR)
  • Joel Muga Opinja v East Africa Sea Food Ltd
    [2013] eKLR
On appeal from
Magistrates' Court (ELRC), Malindi
Malindi CM ELRC E024 of 2022
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over the ruling of the trial magistrates' court in an employment claim

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, "Thoya v Ennio Limited (Appeal E014 of 2024) [2024] KEELRC 2687 (KLR)", Case Analysis (2024). ELRC Appeal from Malindi CM ELRC E024 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2687/eng@2024-10-31

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