Amos Wamawlwa Silali v Bramwel Simiyu Masika & 3 others

2. c. That pending the hearing and determination of this Application, this Honourable Court be pleased to issue an order directing M/S Remma Auctioneers and the Plaintiff herein by themselves, agents, servants and or anybody acting on their behalf to release Motor Vehicle Registration number KDA XXXY Toyota Hiace Matatu to the objector herein. d. That this Honourable Court be pleased to find and declare that the Motor Vehicle Registration number KDA XXXX Toyota Hiace Matatu is owned by the Applicant herein and not the Defendants. e. That the Plaintiff (now Appellant) and or M/s Remma Auctioneers, by themselves, agents, servants or anybody acting on their instructions be restrained from attaching, advertising for sale and or selling Motor Vehicle Registration number KDA XXXY Toyota Hiace Matatu. f. That the Plaintiff (now Appellant) be condemned to pay costs of this proceedings. The application was based on grounds set out in the Notice of Motion as follows: a. That the Objector (now 1st Respondent) is the bonafide owner of Motor Vehicle Registration number KDA XXXY Toyota Hiace Matate. b. That the said Motor Vehicle Registration number KDA Xxxy Toyota Hiace Matatu has been seized by M/s Remma Auctioneers and is in danger of being sold by public auction pursuant to the decree of this court issued on the 25th of May 2023. c. That the Objector (now 1st Respondent) was not a party to the suit nor a judgment debtor herein and therefore not liable to satisfy any order and/or decree emanating from this suit. d. That the said motor vehicle does not belong to the Defendants/Judgment Debtors (now 2nd, 3rd & 4th Respondents) herein hence cannot be attached in execution of a decree against the Defendants. e. That the said motor vehicle is employed by the Objector ((now 1st Respondent) for commercial purposes hence the Objector will suffer irreparable loss and damage if the same are sold. f. That it is just fair and in the interest of Justice to grant the orders sought. 3. This application is supported by an affidavit of the 1st Respondent sworn on 3rd October 2023, wherein he deposed that he is the bona fide owner of motor vehicle registration number KDA XXXY Toyota Hiace Matatu having purchased the same from one James Macharia Muthoni and he annexed thereto copies of the sale agreement, Affidavit of transfer of ownership and log book respectively. Further that the said motor vehicle is in imminent danger of been attached and/or sold pursuant to a decree issued by the lower Court on 25th May 2023 and the warrants of attachment and sale of moveable property dated 1st September 2023. That he was never a party to the said suit as a Defendant and that the motor vehicle does not belong to any of the Defendants/Judgement debtors wherefore the same ought not to be attached in execution. He maintained that he is at a brink of suffering irreparable loss if the said motor vehicle is attached as it is for commercial user. 4. In response, the Appellant herein filed his Replying Affidavit sworn on 6th October 2023, wherein he averred that the 1st Respondent’s application is frivolous, vexatious and an abuse of Court process as the same contravenes the dints of Order 22 Rule 51. He averred that he was involved in a road traffic accident and was duly issued with a Police Abstract and copy of the Insurance for motor vehicle registration number KDA XXXY Toyota Hiace Matatu by the Base Commander Bungoma showing that the said motor vehicle was owned by the 3rd Respondent herein. He averred that he proceeded to https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18145/eng@2025-11-27 2

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conduct a search with NTSA and established that the same motor vehicle is registered in the name of the 2nd Respondent and that the base commander Bungoma had issued him with a picture of the said motor vehicle with the name Kitale Link on its body, and the witness statement of the 4th Respondent, driver of the said motor vehicle, admitted to been the driver and was driving it on the date of the said accident. He averred that as soon as the 3rd Respondent was duly served with summons to enter appearances they acknowledged the same vide a rubber stamp acknowledging that the same motor vehicle was involved in an accident. Further, he averred that the said motor vehicle was duly attached and that as per the 1st Respondents documents, it was clear that at the time of his accident on 31st December 2021, the said motor vehicle was registered in the name of the 2nd Respondent. Finally, he averred that the 1st Respondent’s actions are only geared towards hindering the Appellants from enjoying the fruits of his labour. 5. After an in-depth analysis of the evidence before Court, the trial Court found that the motor vehicle registration number KDA XXXY Toyota Hiace Matatu was not under attachment when it was sold and subsequently transferred to the 1st Respondent herein and the same could not be said to be an illegality. She proceeded to allow the Motion application in terms of prayers (d) (e) and (f) as prayed. B. The Appeal 6. The Appellant was dissatisfied with the ruling of the trial Court and filed a memorandum of appeal dated 30th November 2023, which he based on the following grounds appeal which I shall reproduce in the verbatim: a. That the Learned Trial Magistrate erred in both law and fact when she failed to find that motor vehicle registration number KDA XXXY was involved in a road traffic accident on the 31/12/2021 hence properly attached in satisfaction of the decree. b. That the Learned Trial Magistrate erred in both law and fact when she failed to find that the objection proceedings did not comply with the Provisions of Order 22 Rule 51 of the Civil Procedure (Amendment) Rules 2020. c. The Learned Trial Magistrate erred in both law and fact when she failed to find that One James Macharia Muthoni had no capacity to sell motor vehicle registration number KDA XXXY to the 1st Respondent (Objector). d. That the Learned Trial Magistrate erred in both law and fact when she failed to find that M/ S Qaswara Traders Limited were the registered owners of motor vehicle registration number KDA XXXY at the time of the road traffic accident on the 31/12/2021 and thus the motor vehicle registration number KDA XXXY was properly attached in execution of the decree. e. That the Learned Trial Magistrate erred in both law and fact when she declared that motor vehicle registration number KDA XXXY is owed by the 1st Respondent and not the 2nd, 3rd and 4th Respondents without regard that all the parties were not served with the objection thereby occasioning a miscarriage of justice. f. That the Learned Trial Magistrate erred in both law and fact when she ordered the Appellant to pay costs of the objection proceedings without regard that the Appellant sustained near fatal bodily injuries classified as Grievous Harm occasioned by motor vehicle registration number KDA XXXY driven by the 4m Respondent thereby occasioning a miscarriage of justice. g. That the objection proceedings were conducted contrary to the law and procedure governing objection proceedings thereby occasioning a miscarriage of justice. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18145/eng@2025-11-27 3

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7. h. That the ruling by the Learned Magistrate is poorly reasoned. i. The Learned Trial Magistrate erred in both law and fact when she failed to consider and take into account the submission and case law cited by the Appellant hence occasioning a miscarriage of justice. The Appeal was canvassed by way of written submissions. On my perusal of the Court record and the Court Tracking System it was clear that only the Appellant herein did comply with the Court’s directions on filing submissions. C. Analysis and Determination 8. This being a first appeal, this Court is under a duty to re-evaluate, re-analyze and re-scrutinize the evidence adduced before the trial Court and make its own conclusions while taking into account the fact that, unlike the trial Court, it did not have the advantage of observing the demeanor of the witnesses and hearing their evidence first hand. The foregoing duty was succinctly enunciated by the Court of Appeal in the case of Selle v Associated Motor Boat Company Ltd (1968) EA 123 and Peters v Sunday Post Limited [1985] EA 424. 9. I have duly re-evaluated the record of appeal in an exercise akin to a retrial and I have moreover considered the rival submissions of parties and the issue for determination is whether or not the 1st Respondent did on a balance of probabilities demonstrate that they were entitled to or that they had a legal or equitable interest in motor vehicle registration number KDA XXXY. 10. Objection proceedings are brought pursuant to Order 22 Rule 51 (1) of the Civil Procedure Rules which states: “ (1) 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.” 11. What I find objectionable however is that the 1st Respondent did not serve the objection and the subsequent proceedings upon the 2nd, 3rd and 4th Respondents who are the judgement debtors yet Order 22 Rule 51 (3) of the Civil Procedure Rules requires the notice and the application to be served on all the parties in the suit. 12. Be that as it may I have carefully perused the record and note that the non-service of the notice of objection upon the Appellant and the Respondents herein did not hinder the Appellant from filing his requisite response in form of a Replying Affidavit sworn on 6th October 2023. At this juncture, I concur with the lower Court’s holding that all fairness and substance should prevail in this instant circumstance over procedural technicalities as dictated under Article 159 (2) (d) of the Constitution of Kenya, 2010 and Section 1A and 1B of the Civil Procedure Act. In the case of James Mangeli Musoo v Ezeetec Limited [2014] eKLR it was held that: “ A technicality, to me is a provision of law or procedure that inhibits or limits the direction of pleadings, proceedings and even decisions on court matters. Undue Regard to technicalities therefore means that the court should deal and direct itself without undue consideration of any laws, rules and procedures that are technical and or procedural in nature. It does not, from the onset or in any way, oust technicalities. It only emphasizes a situation where undue https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18145/eng@2025-11-27 4

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regard to these should not be had. This is more so where undue regard to technicalities would inhibit a just hearing, determination or conclusion of the issues in dispute.” 13. I recognize that Article 159(2)(d) of the Constitution is not automatic and depends on the Court’s discretion, which balances procedural rules with the interests of justice, ensuring cases are determined on their merits without being hindered by minor or technical errors. 14. On whether or not the 1st Respondent did on a balance of probabilities demonstrate that he was entitled to or that it had a legal or equitable interest in motor vehicle registration number KDA XXXY, I do find that he had availed a sale of agreement and Affidavit of transfer of ownership indicating that the motor vehicle herein was sold on 9th December 2022 and subsequently transferred to the 1st Respondent on 15th December 2022, vide a transfer NO. 20221219090508. The 1st Respondent had duly proved that he had a legal interest of ownership in the attached motor vehicle which he acquired prior to it’s attachment. 15. Based of the above, I do concur with the trial magistrate’s holding and subject to the availed sale and ownership documents it is clear that alienation, removal and/or disposal of attached goods is only restricted while they are under attachment and not prior to the attachment. 16. In the upshot I find that this appeal has no merit first as there is no evidence that the 1st Respondent illegally acquired the subject motor vehicle and I hereby dismiss it with costs to the 1st Respondent. 17. This file is hereby marked as closed. Orders accordingly. DELIVERED, SIGNED AND DATED AT BUNGOMA THIS 27TH DAY OF NOVEMBER 2025. MWANAISHA.S. SHARIFF JUDGE In the presence of: Ms Wanyama holding brief Mr Bw’onchiri .For Appellant N/A for 1st Respondent N/A for 2nd Respondent N/A for 3rd Respondent N/A for 4th Respondent Peter Machoni Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18145/eng@2025-11-27 5

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