Omolo v Dande (Originating Summons 278 of 2017) [2026] KEELC 2757 (KLR)

in 2014. She urged that she has since lived in the homestead and acquired movable property including household goods and livestock. 5. The deponent averred that on the 27th day of May 2025, Omwoyo Auctioneers under the direction of the Plaintifi/Decree-holder purported to proclaim some of her property in execution of judgment issued by this Court against the Defendant. She annexed and marked the Proclamation and Warrant of Attachment marked as "BAO-2". She further stated that all the household goods and livestock listed in the said proclamation notice are all hers and not the Defendants’. 6. Vide a Replying Afidavit dated 15th August 2025 sworn by Omwoyo David Obare, a licensed Auctioneer trading as M/s Omwoyo Auctioneers, he urged that the subject application constitutes an abuse of the due process of court and solely intended to delay disposal of the suit. He deponed that on 31st October 2024, the Plaintifi/Decree Holder took out an application for execution of Decree against the Defendant/Judgment Debtor for purposes of recovering the decretal sum and costs of Kshs 250,058.00. The Judgment Debtor failed to appear before the Court as required, whereupon a warrant of arrest was duly issued. He annexed a copy of the said application for execution of Decree marked as Exhibit ODO 2. 7. The deponent averred that despite numerous unsuccessful attempts to arrest the Judgment Debtor, on 25th July 2024 the Court granted leave to the Decree Holder to proceed by way of a change in the mode of execution. Consequently, warrants of attachment were duly signed and issued by this Court to Omwoyo Auctioneer, authorizing the proclamation of the Judgment Debtor’s movable property, pursuant to the Decree Holder's letter dated 16th May 2025. He annexed a copy of the said letter addressed to the Court requesting the sealing and signing of warrants marked as Exhibit ODO 3. 8. Pursuant to the Judgment, Decree, and Certificate of Costs issued by this Court, and in accordance with the provisions of the Civil Procedure Act and the Auctioneers Rules, Omwoyo Auctioneers was instructed to proceed with execution by way of attachment of the Judgment Debtor’s movable property. On 27th May 2025, he lawfully proceeded to the Judgment Debtor’s homestead and duly proclaimed various household items and domestic livestock found therein, in execution of the decree. During the said exercise, one Benter Atieno Oketch accepted service of the proclamation. He urged that the allegations that he did not access or enter the homestead and merely stood at the gate are unfounded, misleading, and entirely false. A copy of the letter addressed to the Court, together with the Proclamation Notice, was annexed and marked as Exhibit ODO 4. 9. The deponent averred that the said Benter Atieno Okech, introduced herself as an employee and a care taker of the home and properties of the Judgment debtor and confirmed that all the proclaimed goods belonged to the judgement debtor and there was never any protest similar to the objection being fronted. Further, that the proclaimed goods were found within the premises of the Judgment Debtor, thereby raising a legal presumption of ownership in favour of the Judgment Debtor, which presumption has not been rebutted by the Objector. 10. The deponent averred that the Objector has failed to furnish any credible documentary evidence to support her claim of ownership, including but not limited to receipts, purchase agreements, or transfer documents and the proclaimed items were in active use by the Judgment Debtor at the time of attachment, further reinforcing the presumption of ownership. 11. He urged the court to dismiss the application with costs and allow him proceed with execution. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2757/eng@2026-04-29 2

page 2 of 6

Objectors’ Submissions 12. Learned Counsel for the objector submitted that the proclamation merely lists vague and general items such as “assorted furniture,” “assorted electronics," and "assorted cattle.” This is contrary to Rule 12 of the Auctioneers Rules, 1997. Counsel urged that a lawful proclamation must strictly comply with the Auctioneers’ rules, placing reliance on the case of Hughes Limited v Mohammed S Kassam [2008] KEHC 469 eKLR, African Merchant Assurance Co. Ltd v Hezron Getuma Onsongo (2019) KEHC 819 I KLR and Lakeland Motors Limited vs Harbhajan Singh Sembi Civil Application No. Nai 24 of 1998 (11/98UR) [1998] eKLR. 13. Counsel urged that from the principles set out in the foregoing authorities, it is evident that the complacent manner in which the respondent filled the Sale Forms hardly met the statutory threshold. The wording of Rule 12 (1) (b) is that “the value of specific items and the condition of each item,” should be set out by the auctioneer. That the respondent casually stated that the proclaimed goods were old and failed to specify the value of each item as required. 14. Counsel submitted that by stating in his afidavit that he had access to the homestead and yet he failed to prepare a proper inventory that meets a legal threshold, the auctioneer abdicated his statutory duty. This proclamation is thus incurably defective and incapable of supporting a valid execution. 15. Counsel reiterated that the objector has deponed that she has been in occupation of the homestead since 1992 as caretaker and farmhand. The Judgment Debtor relocated abroad decades ago, with evidence showing he last visited Kenya in 2014. He cited Precast Portal Structures v Kenya Pencil Company Ltd & 2 others [1993] eKLR and urged that the failure by the Decree Holder to discharge this evidentiary burden means the Objector’s claim remains unrebutted. 16. Counsel urged that the Objector has been in uninterrupted possession for over three decades, taking care of the homestead in the absence of the Judgment Debtor. That a court of equity should not close its eyes to such circumstances even in the absence of receipts. That accordingly, equity tilts in favour of the Objector, who stands to sufier irreparable harm if execution proceeds on the basis of a void proclamation. 17. Counsel urged that the purported proclamation threatens to deprive the Objector of property in her possession without due process, contrary to Article 40 of the Constitution, which guarantees the right to property. 18. Counsel maintained that the proclamation was illegal, vague, and incapable of grounding lawful execution. That the Decree Holder has not discharged the burden of proving ownership of the proclaimed property. The Court should therefore set aside the proclamation, protect the Objector’s quiet possession, and award her costs. Plaintifi ’s submissions 19. Learned Counsel for the plaintifi filed submissions dated 17th August 2025 where he laid down the background of the case and reiterated the contents of the replying afidavit. he urged that the Objector's current claim of ownership is an afterthought, unsubstantiated, and constitutes an abuse of the court process intended to delay and frustrate execution. Further, that no credible documentary evidence, such as receipts, purchase agreements, or transfer documents, has been furnished to support her claim. 20. Counsel submitted that the proclaimed goods were found within the Judgment Debtor's premises, raising a legal presumption of ownership in his favour, which the Objector has failed to rebut. Further, that objector proceedings are governed by Order 22 Rule 51 of the Civil Procedure Rules, 2010 and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2757/eng@2026-04-29 3

page 3 of 6

that the burden is squarely on the Objector to prove and establish her right to have the attached property released from attachment. This burden must be discharged on a balance of probabilities by producing strong evidence of ownership to rebut the prima facie presumption that the goods belong to the Judgment Debtor. 21. Counsel cited the decision of the Court of Appeal in Southern Bell Limited v National Social Security Fund Board of Trustees & 4 others [2023] KECA 1170 (KLR) and Arun C. Sharma v Ashana Raikundalia T/A A. Raikundalia & Co. Advocates & 4 others [2014] KEHC 1412 (KLR) and urged that the Objector has provided no receipts, purchase agreements, transfer documents, branding, or inventory predating the proclamation to support her claim. That her allegations are hollow and unsubstantiated, warranting dismissal. 22. Counsel posited that where property is found in the possession or premises of the Judgment Debtor, there is a legal presumption that it belongs to him, and the Objector must rebut this with cogent evidence. Counsel cited Kagai v Kilonzo & 61 others; Atieno & another (Objector) [2025] KEELC 983 (KLR), and urged that the goods were in the Judgment Debtor's homestead under his control, and the Objector confirmed they belonged to him during proclamation. No evidence rebuts this presumption, and the objector’s claim appears collusive to shield the Judgment Debtor. Counsel urged the court to dismiss the application with costs. Analysis and Determination 23. The germane issue for determination is; whether the court should halt the impending attachment and auction in execution of the judgment. The attendant issue is who to bear the costs of the instant application. 24. The Applicant contends that the court should halt the impending auction and execution on the basis that the property that is to be auctioned does not belong to the judgment debtor. Objection proceedings are governed by Order 22 Rule 51(1) of the Civil Procedure Rules which provides as follows; “ (1) 25. 26. Any person claiming to be entitled to or to have a legal or equitable interest in the whole of or part of any property attached in execution of a decree may at any time prior to payment out of the proceeds of sale of such property give notice in writing to the court and to all the parties and to the decree-holder of his objection to the attachment of such property.” It is trite law that he who alleges must prove. This position is succinctly captured in Sections 107, 109 and 112 of the Evidence Act. Section 107 provides as follows: “ (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” Sections 109 and 112 of the same Act states as follows: “ 109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2757/eng@2026-04-29 4

page 4 of 6

112. 27. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.” In objection proceedings, it has been stated that the burden of proof is on the objector in various decisions. The Court in Arun C. Sharma v Ashana Raikundalia T/A A. Raikundalia & Co. Advocates & 4 others [2014] eKLR stated: “ 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.” 28. In Precast Portal Structures v Kenya Pencil Company Ltd & 2 Others [1993] eKLR the court held: “ The burden is on the objector to prove and establish his right to have attached property released from the attachment. On the evidential material before the court, a release from attachment may be made if the court is satisfied; a. That the property was not when attached, held by the Judgment-Debtor for himself or by some other person in trust for the Judgment-Debtor, or b. That the objector holds that property on his own account.” 29. In Kennedy Njuguna Mwangi v Collins Kiprono Bett & 3 others [2018] eKLR it was afirmed that for an Objector to succeed in objection proceedings, they must produce evidence of legal and/or equitable interest in the whole or part of the attached property. 30. In the instant application, I have considered the Applicants’ pleadings. There is no proof the applicant has tendered to corroborate the allegations that the property that is to be auctioned belongs to her, whether legal or equitable. Furthermore, the applicant has neither provided evidence to demonstrate that she was engaged as a caretaker of the defendant/ judgment debtor herein, and nor has she given any documentary proof her rules of engagement with the said party even if the court were to believe that she his caretaker. In any event the applicant has also not provided any evidence to prove, if at all she would be believed, that when she was employed a caretaker in the premises where the properties in issue are situate, the same were not furnished (with the properties of the judgment debtor) or even that the livestock thereon were not of the judgment debtor. It should not be lost sight of the fact that caretaker, as a steward, is a person put in a position of being in charge of the principal’s property. There is and always has to be a distinction between the principal’s property and that of the caretaker. Any blur of the line to draw between them leads to a rebuttable inference that it is of the principal since it is in his premises. That distinction has not been laid in the instant application, particularly given that the said properties are on and in the premises of judgment debtor’s property. 31. Given the above reasoning, it is my considered view that the Application is an abuse of the court process and merely intended to delay the execution of the judgment. The Applicant having failed to prove that the proclaimed property belongs to her, the Application fails in its entirety. It is hereby dismissed. The stay of execution is lifted. But regarding costs of the application, the Applicant shall bear them. 32. Orders accordingly. RULING DATED, SIGNED AND DELIVERED VIA THE TEAMS PLATFORM THIS 29TH DAY OF APRIL 2026 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2757/eng@2026-04-29 5

page 5 of 6

HON. DR. IUR NYAGAKA JUDGE From 11: 34 AM, in the presence of, Oduk Advocate for the Objector/Applicant O. M. Otieno Advocate for the Plaintifi/Respondent No appearance for the Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2757/eng@2026-04-29 6

page 6 of 6