Mohammed v Jetlite Air Limited; Advantage Air Travel Limited (Objector) (Cause E429 of 2022) [2025] KEELRC 2979 (KLR)

proclaimed items) belong to it and not the Respondent. Consequently, it (the objector) sought the following orders:a. Spent. b. Spent. c. Spent. d. That the court be pleased to set aside/lift the proclamation of attachment dated 4th March 2025 issued to Nexttgen Auctioneers against it (the Objector). e. That the Claimant be condemned to pay costs of the application. 5. The application is based on the grounds that appear on the face thereof. It is also supported by two afidavits that were sworn by one Abass Mahat, the Financial Oficer of the Objector. 6. Essentially, the Objector avers that on 4th March 2025, the auctioneers forcibly entered into its premises at Wilson Airport and wrongfully proclaimed its goods. It lists the items that were proclaimed as: reception desk; visitors’ chairs; 2 computer servers; 5 Ace machines; 20 desks; 20 computers; 2 photocopy machines; 5 metallic cabinets; and 2 aero planes. 7. The Objector states that the auctioneers alleged that they were acting on the instructions of the Claimant and his lawyers. It contends that the auctioneers produced a warrant of attachment which showed that the dispute in respect of which the attachment was being conducted was between Juma Yusuf Mohammed and Jetlite Air Limited. 8. The Objector avers that it informed the auctioneers that it was not party to the case in which the warrants of attachment were issued. It further contends that it notified the auctioneers that it was not indebted to any of the parties in the dispute. 9. The Objector avers that it informed the auctioneers that they had gone to the wrong address. However, it contends that the auctioneers insisted on carrying out the proclamation. 10. The Objector avers that despite informing the auctioneers that their conduct was disruptive and a security risk, they insisted on remaining on its premises in order to execute the warrants. It contends that the auctioneers then went ahead to wrongfully and illegally proclaim the aforesaid items. 11. The Objector insists that the proclaimed goods belong to it. To support this assertion, it has presented to court a sales quotation from a furniture retail outlet dated 27th March 2024, mobile money payment messages evidencing payments made to the furniture store on 21st March 2024, a quotation dated 16th June 2022 for relocation and installation of six (6) air conditioners and a cheque dated 15th July 2022 evidencing payment for the air conditioners and associated services. 12. The Claimant has opposed the application. He filed an afidavit dated 19th March 2025 to anchor his opposition to the motion. 13. In the afidavit, the Claimant avers that he has a lawful decree against the Respondent. He avers that he applied for execution of the said decree following which the court issued warrants of attachment to Nexttgen Auctioneers. 14. The Claimant avers that the said auctioneers proceeded to lawfully proclaim the Respondent’s movable assets as evidenced in the proclamation form that was presented to court. He contends that the Respondent is the true owner of the proclaimed goods. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2979/eng@2025-10-30 2

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15. The Claimant denies that the Objector has either a legal or equitable interest in the property that was proclaimed. It is his case that the Respondent and Objector are simply colluding to defeat enforcement of the court decree. 16. The Claimant avers that the Objector bears the obligation to prove that the property in question belongs to it. He avers that the Objector has not discharged this burden. 17. The court record shows that the Claimant initially filed a replying afidavit that was not dated. However, on 25th March 2025, he uploaded and paid for a dated version of the afidavit. 18. In the Objector’s supplementary afidavit dated 22nd April 2025, it fiags the fact that the Claimant’s replying afidavit was undated. Consequently, it prays that the ofiending afidavit be struck ofi the court record. 19. At the time the Objector filed the supplementary afidavit dated 22nd April 2025, the Claimant had already placed on the court file the proper replying afidavit bearing the date it was sworn. As such, the objection to the afidavit that was initially undated came in significantly late after the Claimant had already regularized the defect in it. 20. The court agrees with the Objector that the undated afidavit by the Claimant was defective. As such, it was a non-afidavit. However and as mentioned earlier, the Claimant remedied the defect by filing a proper afidavit before the Objector raised the aforesaid objection. 21. There is no provision in law which outlaws the course which the Claimant adopted to remedy the defect in his afidavit. As such, the court holds that he regularly corrected the error in his afidavit by filing a corrected version thereof. 22. The court is alive to the requirement under article 159 of the Constitution to promote substantive justice instead of deciding cases on procedural technicalities. The court is also alive to the reality that although the Objector fiagged the aforesaid defect which, as has been demonstrated by the Claimant, was redressed by filing a proper afidavit, it (the Objector) did not indicate the prejudice it sufiered as a result of being served with an undated but sworn replying afidavit. Having regard to the foregoing, the court is inclined, which it hereby does, to reject the objection. 23. The law on objection proceedings in Kenya is encapsulated in Order 22 rule 51 of the Civil Procedure Rules which, in part, provides as follows:‘’A 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. Such notice shall be accompanied by an application supported by afidavit and shall set out in brief the nature of the claim which such objector or person makes to the whole or portion of the property attached.’’ 24. The burden of proof to establish the legal or equitable interest an Objector asserts over attached goods in objection proceedings rests with him. It is not for the Decree Holder, at that stage of the proceedings, to demonstrate that the property belongs to the Judgement Debtor. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2979/eng@2025-10-30 3

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25. This reality has been afirmed through a series of judicial pronouncements. In Simba Colt Motors Ltd vs Lustman & Co. (1990)HCCC No. 729 of 2002, the court stated on the subject as follows:“ The purpose of Rule 57 is to provide the objector with an opportunity to establish his claim to the attached moveable property. The rule casts the onus of proof on the objector to prove that the property belonged to him and not, as submitted before me, for the Decree-holder to prove that the property belonged to the Judgement-Debtor.” 26. InDubai Bank Kenya Ltd v Come-Cons Africa Ltd [2012] KEHC 3900 (KLR), the learned Judge expressed himself on the subject in the following terms:‘’…. the burden of proof of interest in an attached property in objection proceedings falls on the objector. It was therefore incumbent on the objector to avail all relevant satisfactory material in support of his case. Where the material presented is insuficient the Court has no otherwise but to dismiss the objection.’’ 27. In the case ofZingo Investment Limited v Miema Enterprises Limited [2015] KECA 246 (KLR), the learned Judges of the Court of Appeal commented on the subject as follows:‘’In the persuasive High Court case of Akiba Bank Ltd v. Jetha & Sons Ltd (2005) EKLR it was correctly held that for an objector to succeed in his objection he must exhibit evidence of his legal or equitable interest in the whole or part of any property attached in execution of decree.’’ 28. InDuncan Kabui v Samuel Bede Ogembo & another [2014] KEELC 458 (KLR), the learned Judge observed on the subject as follows:‘’The burden of proof in this regard is on the objector to establish her legal or equitable interest in the property which is the subject matter of the execution objected to, and it is not for the decree holder to prove that the goods belong to the Defendant.’’ 29. It has been observed that the role of the court in objection proceedings is not to determine ownership of the property that is the subject of the objection. Rather, its role is confined to deciding whether the objector has a legal or equitable interest in the attached property. 30. As such, the court is not entitled, during such proceedings, to embark on the journey of determining whether the property in question is owned by a third party who is not in the dispute. Its function is confined to determining whether the Objector has established if he has a legal or equitable interest in the property. 31. Addressing this question, the High Court in the case of Dubai Bank Kenya Ltd v Come-Cons Africa Ltd [2012] KEHC 3900 (KLR) stated as follows:‘’I agree that the issues raised on behalf of the objector herein touching on the third party’s stake in the suit property cannot be determined in an application of this nature. There is an express procedure provided by the law for those who claim an interest in an attached property and the law as I understand it is that where there is an express procedure provided by the law, that procedure should as much as possible be adhered to. The said issues can only be determined where a specific application is made by a party……. Whereas the dismissal of the objection does not ipso facto confer the ownership of the property attached on the https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2979/eng@2025-10-30 4

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judgement debtor, it gives the decree holder the go ahead to proceed with the execution notwithstanding that particular objector’s claim.’’ 32. I understand the learned Judge in the aforesaid case to have been stating that a third party can only lodge a claim that is personal to him in respect of property which is the subject of attachment through objection proceedings. An Objector cannot invite the court through these proceedings to find that the property in question belongs to another party who has not lodged an objection to the attachment. 33. In the instant suit, the Objector has objected to the attachment of various properties including two aero planes. However, it is noteworthy from paragraph seven (7) of the Objector’s supplementary afidavit dated 22nd April 2025 that it (the Objector) does not lay claim, legal or equitable, on the aero planes. To the contrary, it expressly excludes the planes from the list of the property it claims to belong to it. 34. At paragraph nine (9) of the same afidavit, the Objector contends that although the auctioneers proclaimed the two aero planes, they (the auctioneers) did not provide details of their (the planes’) registration numbers and evidence of how they (the auctioneers) identified them (the aero planes). The Objector contends that the Claimant should not expect it (the Objector) to provide proof of ownership of the two aero planes because many aero planes land and take ofi from Wilson Airport where its (the Objector’s) ofices are. It is the Objector’s case that without the Claimant providing registration details for the two aero planes, it is onerous for him to expect it (the Objector) to provide ownership details for the aero planes. 35. From the above statements, it is apparent that the Objector is not laying any legal or equitable claim on the two aero planes which the Claimant proclaimed. Rather, it is suggesting that the aero planes belong to an unknown third party and that the Claimant should not expect it to resolve the ownership riddle that surrounds them. 36. It is not for this court to attempt to unravel whether the two planes are owned by a third party or the Judgment Debtor through these objection proceedings. All that is required of it (the court) is to determine whether the Objector has a legal or equitable interest in the planes. 37. The Objector having not laid claim, either equitable or legal, in the two aero planes, the court is not entitled to inquire into who owns them through these proceedings. It is up to the Claimant to ascertain whether the aero planes belong to the Judgment Debtor before he levies execution of the decree against them. 38. Indeed, this is what I understand the learned Judge in the case of Dubai Bank Kenya Ltd v ComeCons Africa Ltd [2012] KEHC 3900 (KLR) to have meant when he expressed himself on the matter as follows:‘’Whereas the dismissal of the objection does not ipso facto confer the ownership of the property attached on the judgement debtor, it gives the decree holder the go ahead to proceed with the execution notwithstanding that particular objector’s claim.’’ 39. The foregoing being the case, this court will not seek to determine the owner of the two aero planes through these proceedings. Its role will be limited to determining whether the Objector has an equitable or legal interest in the planes. And as the evidence on record has demonstrated, the Objector has not laid any claim on the aero planes, legal or equitable. 40. In any event, even assuming that it (the Objector) had claimed a legal or equitable interest in the planes, it is apparent from the record that it has not provided evidence to demonstrate that it has such interest in the planes. It has neither tendered evidence of legal title to the planes nor provided proof of any https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2979/eng@2025-10-30 5

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equitable interest in them. As such, the objection proceedings in respect of the two planes fail for want of evidence in this respect. 41. As pointed out earlier, the Objector is under duty to provide persuasive evidence to demonstrate that the property it claims indeed belong to it or that it has an equitable interest in them. As was indicated in the case ofZingo Investment Limited v Miema Enterprises Limited [2015] KECA 246 (KLR), this evidence may include purchase receipts for the items claimed, invoices, delivery notes or other purchase documents (see par 22 of the decision). 42. The record shows that in a bid to establish its claim over the proclaimed goods, the Objector presented to court a sales quotation from a furniture dealer dated 27th March 2024. The document shows that the Objector placed an order for: assorted cabinets; a side table; assorted desks; visitors’ chairs; high and low back chairs; leather fabric sofa sets; and work stations. The record further suggests that the Objector paid for the aforesaid assorted pieces of furniture in March 2024. 43. The Objector further tendered in evidence documents to show that it placed an order for six (6) pieces of air conditioning machines and assorted equipment related thereto. There is further evidence that it (the Objector) settled the bill for the aforesaid equipment. 44. In the face of the aforesaid evidence, it is apparent on a balance of preponderances that the assorted pieces of furniture and air conditioning equipment listed above belong to the Objector. As such, they cannot be the subject of attachment in these proceedings. 45. However, a perusal of the list of proclaimed goods shows that only some of the items form part of the assorted equipment which the Objector has demonstrated belong to it. These include: the reception desk and visitors’ chairs; 20 desks; and 5 metallic cabinets. 46. There are other items in the proclamation in respect of which the Objector has not presented ownership evidence. These include: 2 computer servers; 5 Ace machines; 20 computers; and 2 photocopiers. 47. The Objector has not produced receipts, invoices or delivery notes to demonstrate that it acquired these items (items in par 46 above). Similarly, it has not provided evidence to demonstrate the equitable interest it has in the items. 48. The Objector appears to suggest that the mere fact that the equipment were found on its premises is proof that they belong to it. However, the Court of Appeal rejected a similar suggestion in the case ofZingo Investment Limited v Miema Enterprises Limited [2015] KECA 246 (KLR). Commenting on the subject, the court expressed itself as follows:‘’…. ownership of premises is not by itself suficient in objection proceedings; there must be ample documentation of ownership of attached items. The issue is not ownership of premises but proprietary interest in the attached goods. If this were not the case landlords may well become objectors whenever a tenant’s goods are proclaimed and this cannot be the law.’’ 49. For the above reasons, the court makes the following final orders:a. The court finds that the Objector has presented prima facie evidence to demonstrate that some of the proclaimed items belong to it. These include: the reception desk and visitors’ chairs; 20 desks; and 5 metallic cabinets. b. The Claimant has not controverted the Objector’s evidence demonstrating the equitable title it has in respect of the above equipment. In the premises, the court upholds the objection https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2979/eng@2025-10-30 6

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proceedings in respect of the aforesaid items to wit: the reception desk and visitors’ chairs; 20 desks; and 5 metallic cabinets. c. The court finds that the Objector has not provided cogent evidence to establish that it has either an equitable or legal interest in the following items in the proclaimed goods: 2 computer servers; 5 Ace machines; 20 computers; 2 photocopiers; and 2 aero planes. In the premises, the objection proceedings fail in respect of these items. d. Each party to bear own costs of the objection proceedings. DATED, SIGNED AND DELIVERED ON THE 30TH DAY OF OCTOBER, 2025 B. O. M. MANANI JUDGE In the presence of: ………… for the Claimant ………… for the Respondent ………… for the Objector Order In light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court. B. O. M MANANI https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2979/eng@2025-10-30 7

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