Swing Limited v Attorney General

3. The application is based on grounds on its face and on the supporting adavit of the objector’s director, one Kamau Mucuha sworn on January 25, 2023. He deposes that on January 20, 2023, the Objector’s oce furniture was proclaimed at 9th Floor Bruce House in the oces shared between it and the Plainti pursuant to warrants obtained by the 2nd Defendant on December 9, 2022. He annexed purchase invoices of the furniture. 4. He deposes that the Objector was initially the only tenant at the said oces from as far back as 2007, but was later joined by the Plainti to share oces and the objector has leased furniture to the Plainti. He annexed the lease agreement. 5. The application is opposed by the 2nd Defendant who relies on the replying adavit of John M. Mbijiwe, a licensed auctioneer from Bealine Kenya Auctioneers which conducted the auction herein sworn on February 8, 2023. He avers that on January 20, 2023, he peaceably visited the Plainti’s oce premises situate at the 9th Floor of Bruce House in Nairobi door No 13 which bears a signboard in the Plainti’s name and lawfully carried out a proclamation against its moveable property for purposes of attachment and sale in recovery of the decretal sums of Kshs 1,458,185/=. He adds that there is no indication that the objector’s oces are situated in the subject building. 6. He avers that the objector has conspired with the Plainti to concoct false ownership claims over the proclaimed goods which belong to the Plainti in an attempt to frustrate execution. He points out that the objector and the Plainti are sister companies sharing directors with the majority shareholder being Mr. Kamau Mucuha. 7. Mr. Mbijiwe also deposes that the objector has not proved ownership of any of the proclaimed goods as required under Order 22 rule 51 of the Civil Procedure Rules as the annexed invoices are addressed to the Plainti and the objector and the lease agreement for oce furniture has no probative value due to the nature of the relationship between the Plainti and the Objector. 8. The matter was canvassed by way of written submissions. The Objector’s submissions are dated March 13, 2023, where they aver that the auctioneer did not possess a valid auctioneer license as at January 20, 2023 and that the averments made by the auctioneer are in breach of Order 19 Rule 3 (1) of the Civil Procedure Rules and should be struck o. 9. It is also submitted that that based on the case of Salmon and Salmon and Co. Ltd (1897) A.C 22 HL, a company is in law a separate legal entity distinct from its directors and there is no basis to purport that this Court has powers to lift the cooperate veil. To this end, reference was made to the case of Hannah Maina T/a Taa Flower v Rift Valley Bottlers Limited [2016] eKLR and the case of K-rep Bank Ltd v Basilio Pascal Kiseli & 2 others [2012] eKLR. 10. The objector relies on the case of Patrick Kingori Warugongo v James Nderitu & another [2014] eKLR to submit that the fact that the oces located on 9th oor, Bruce House, had sign board bearing the Plainti’s name did not by itself prove that the oce furniture that was proclaimed belonged to the Plainti. Thus in tandem with the case of of Akiba Bank Ltd v Jetha & Sons Ltd [2005] eKLR, the objector has proved that it has a legal equitable interest over the oce furniture proclaimed by exhibiting purchase receipts and the lease agreement. 11. On the other hand, the 2nd Defendant submitted that the Objector is not entitled to and has no legal or equitable interest in the whole of, or part of the property proclaimed by the auctioneer as required under Order 22 Rule 51 (1) of the Civil Procedure Rules 2010 as the sign board of the oces in question was clearly indicated the name “Swing Limited”. To this end, reference was made to the cases of Obadha v Omoro (Civil Case E104 of 2021) [2022] KEHC 332 (KLR). https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17461/eng@2023-05-11 2

page 2 of 3

12. I have considered all the arguments raised herein. The issue falling for determination is whether the court should stay execution herein by vacating the warrants of attachment and the proclamation made thereof. The Objector objects to the proclamation of 12 items as described in the proclamation notice dated 20.1.2023 pursuant to a certicate of costs issued on 28.7.2022. 13. In Dubai Bank (K) Ltd v Come-Cons Africa Ltd and Impak Holdings Co Ltd [2012] eKLR. the Court Stated as follows: “ Although the law is that in the objection proceedings, the court does not and cannot make a nding as to the ownership of the property the subject of the objection proceedings but simply decide whether or not the objector has interest legal or equitable in the attached property, it is equally true that the onus of proof in objection proceedings is on the objector to establish ownership…” 14. In Arun C Sharma v Ashana Raikundalia T/A A. Raikundalia & Co. Advocates & 4 others [2014] eKLR the court held that: “ The objector bears the burden of proving that he is entitled to or has legal or equitable interest on the whole or part of the attached property. The key words are; entitled to or to have a legal or equitable interest in the whole or part of the property.” 15. The Objector has produced an oer letter dated April 17, 2007 for the oce space in question. It has also produced an acceptance of oer dated May 30, 2007. It agreed to all the terms and conditions of the oer letter dated April 17, 2007. Clause 13 of the aforementioned oer prohibits subletting/sharing possession of the oce space. The alleged proclaimed objector’s goods could not legally be in the 1st Defendant’s premises as oce sharing is prohibited. Further, the lease for furniture agreement dated June 5, 2013 does not show that the exact oce furniture in the proclamation notice dated January 20, 2023 is what the Objector leased to the Plainti. 16. In any event, John Mbijiwe has given a precise account of the oces they visited for purposes of proclamation. The oce had a signage written “swing limited” and was door number 913. 17. I nd that the Objector has not established a legal interest in the proclaimed property. In the circumstances, the application dated January 25, 2023 is found to be unmerited, the same is hereby dismissed with costs to the 2nd defendant. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 11TH DAY OF MAY, 2023 THROUGH MICROSOFT TEAMS. LUCY N. MBUGUA JUDGE In the presence of:Thuo for Plainti Aboba for 2nd Defendant Allan Kamau for 1st & 3rd Defendant Court assistant: Eddel https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17461/eng@2023-05-11 3

page 3 of 3