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High CourtDismissedNot stated in the judgment (arising from an election petition and Election Petition Appeal No. 34 of 2018)

Re: Objection Proceedings in Execution of Decree – 1st and 2nd Objectors v Petitioner & 3rd Respondent

High Court of Kenya
3 August 2020
3,188 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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To successfully challenge an auction of your property, you must prove ownership using properly sealed documents and strictly follow court procedures.

What this practically means

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Executive summary

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The 1st and 2nd objectors applied under Order 22 Rule 51 of the Civil Procedure Rules for a stay of execution and the raising of a proclamation made by Hegeons Auctioneers on 30th November 2019 over household goods and two motor vehicles (KCC 076G and KCE 951U) at the 1st objector's homestead, following a decree in favour of the 3rd respondent after an election petition and its appeal. The 3rd respondent opposed, arguing non-compliance with Order 22 Rules 51 and 52, want of proof of ownership, and that the transfer of KCC 076G to the 2nd objector (a company in which the Petitioner was a director and shareholder) was calculated to defeat execution. The court first dealt with preliminary objections: unmarked and unsealed annexures were expunged under Rule 9 of the Oaths and Statutory Declarations Rules, and screen shots were held inadmissible for want of a section 106B(4) Evidence Act certificate. The service-timeliness objection failed because Order 50 Rule 4 excludes the Christmas vacation from computation of time. On the merits, applying Zingo Investment and Dubai Bank, the court held the burden lay on the objectors, that ownership of premises alone is insufficient, and that the unsealed log books could not be relied upon. Although the pre-proclamation transfer of KCC 076G appeared calculated to frustrate execution, no cross-application to upset it had been made. The application was dismissed with costs to the 3rd respondent.

Key legal issues

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01

Admissibility of unsealed annexures to affidavits

Holding

All exhibits annexed to the objector's affidavit were expunged for failure to mark and seal them as required by Rule 9

Reasoning

Rule 9 requires exhibits to be securely sealed and marked with serial letters of identification. The Court of Appeal in Zaheer Jhanda held the rule prevents litigants sneaking unattached documents into the record. The objector's exhibits were neither marked nor sealed, so they had no probative value and were expunged.

p. 2
02

Admissibility of electronic evidence (screen shots)

Holding

Screen shots annexed to the affidavit were inadmissible absent a section 106B(4) certificate

Reasoning

Section 106B(4) of the Evidence Act requires a certificate identifying the electronic record and the device that produced it, signed by a person in a responsible position. Following London Distillers, such a certificate is required even for evidence adduced by affidavit. None was produced.

p. 3
03

Timeliness of service of the objection notice

Holding

Service on 15th January 2020 was within time because Order 50 Rule 4 excludes the period 21st December to 13th January from computation of time

Reasoning

Order 50 Rule 4 omits the Christmas vacation period from computation of time for doing any act under the Rules. Time stopped on 20th December 2019 and resumed on 14th January 2020, so only 5 days had elapsed when service was effected on 15th January 2020.

p. 3
04

Objectors' legal or equitable interest in the proclaimed goods

Holding

The objections to the household goods and both motor vehicles were dismissed for failure to discharge the burden of proof

Reasoning

Ownership of premises is not sufficient; ample documentation of ownership of the attached items is required. The household goods were supported only by impugned lease and utility bills. The log book for KCE 951U showed a third party as owner, and the unsealed log book for KCC 076G could not be relied upon.

p. 4
05

Effect of a pre-proclamation transfer of a vehicle to a company connected to the judgment debtor

Holding

Although the transfer of KCC 076G appeared calculated to frustrate execution, the decree-holder had to cross-apply to upset it; until set aside, the transferee is prima facie owner

Reasoning

Following Michael Kwena v Raza Properties, a completed transfer not yet proclaimed and not upset is as good as any other and should be protected. The court found the transfer to the 2nd objector (where the Petitioner was a director and shareholder) appeared calculated to frustrate execution, but the 3rd respondent never made a cross-application to upset it.

p. 4

Legal principles established

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  • In objection proceedings the burden of proof rests on the objector to establish a legal or equitable interest in the attached property
  • Exhibits to affidavits must be securely sealed and marked with serial letters of identification under Rule 9 of the Oaths and Statutory Declarations Rules; unsealed annexures carry no probative value and may be expunged
  • Screen shots annexed to an affidavit are inadmissible without a certificate under section 106B(4) of the Evidence Act
  • Proof of ownership of premises is not by itself sufficient in objection proceedings; there must be ample documentation of ownership of the attached items
  • A completed transfer of goods not yet proclaimed, not upset by any order, leaves the transferee the prima facie owner; the decree-holder must apply to upset the transfer

Court orders

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  1. 1.The documents attached to the 1st objector's affidavit expunged from the record for non-compliance with Rule 9 of the Oaths and Statutory Declarations Rules
  2. 2.The screen shots annexed to the 2nd objector's affidavit held inadmissible for want of a certificate under section 106B(4) of the Evidence Act
  3. 3.The 3rd respondent's argument that the application was served out of time dismissed
  4. 4.The application dated 18th December 2019 dismissed with costs to the 3rd respondent
Jurisdiction invoked
Order 22 Rules 51 and 52 of the Civil Procedure Rules (objection proceedings in execution of a decree of the High Court)

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, "Re: Objection Proceedings in Execution of Decree – 1st and 2nd Objectors v Petitioner & 3rd Respondent", Case Analysis (2020). Not stated in the judgment (arising from an election petition and Election Petition Appeal No. 34 of 2018). Source: 

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