Jack Muchiri & Others v Hamis J Hamid & Others

movable property by Messrs Hamza Auctioneers Agencies attaching various properties of the Objector at their offices in Mombasa. 3. That upon perusal of the proclamation, it was established that the same arose from decree in respect of costs dated 19/12/2024 in Suit Number HCCC No. E046 of 2013, Jack Muchiri & others v Hamid J. Hamid & others, and was to be effected against an entity known as Mombasa Sports Club. 4. Mombasa Sports Club is a separate entity clearly distinguishable from Jack Muchiri & others who appear in the Summons to Enter Appearance and Plaint. That the attachment and intended execution is being levied on the wrong entity and as such the court ought to halt the same to protect the property of Mombasa Sports Club. 5. The Defendants filed a Replying Affidavit sworn on 11/03/2025 by Hamis J Hamid opposing the application where it was deponed that the Plaintiffs sued them in favour of the Objector and that the Objector never objected prosecution of the case. 6. The Objector then filed a Further Affidavit sworn on 14/04/2025 that it is not true the Plaintiffs sued on behalf of Mombasa Sport Club but in their capacity as members of Mombasa Sports Club. That it is also not true that the club is liable to pay costs in a matter it was not a party and therefore the objection proceedings herein should be allowed as prayed. No evidence has been produced by the Defendants that Mombasa Sports Club was a party in the proceedings hence liable to settle the Defendants’ costs and that the orders sought in the Objector’s application should be allowed as prayed. 7. The application was canvassed by way of written submissions. The Objector filed its submissions dated 14/04/2025 while the Defendants in their submissions dated 26/06/2025 to which I have perused and considered. Analysis 8. Having considered the Objector’s Notice of Motion application, the Defendant’s Replying Affidavit, the Objector’s Further Affidavit and the written submissions by the Objector and the Defendants, the issues for determination are: a. Whether an order for stay of execution proceedings against all movable property attached and proclaimed should issue. b. Who should bear costs. 9. It has not been denied that the attached properties belong to the Objector. The Defendants state that they were sued by the Plaintiff in favour of the Objector club, hence the Warrants against the Objectors properties were properly issued. On the other hand, the Objector states that it is a stranger to the court proceedings as they were not parties to this suit. The attachment of its properties was there wrongful and the warrants and other proclamation thereafter ought to be lifted. 10. I have perused through the Plaint dated 14/06/2023. The Plaintiffs instituted this suit (now withdrawn) in their capacity as Members of Mombasa Sports Club, the Objector. The Defendants were sued in their Capacity as the Immediate Former Management Committee Members of Mombasa Sports Club, the Objector. 11. The Objector, which is a Private Members Club was not party to the proceedings. Summons to enter appearance and Plaint were not served upon the Objector. Nothing stopped the Defendants from enjoining the Objector to the Proceedings as it is a different entity from the Plaintiff and the Defendants herein. Both parties were in the proceedings in their individual capacities. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19609/eng@2025-11-06 2

page 2 of 3

12. I find that the Objector was not a party to the suit and cannot be enjoined to the proceedings by way of Warrants of Attachment and Sale, and the subsequent proclamation of Attachment of Movable Properties. 13. In addition to the above, it is the obligation of the Objector to prove that it has a legal or equitable interest in the goods proclaimed to justify a stay of execution as was held in the case of Stephen Kiprotich Koech v Edwin K. Barchilei & Joel Sitienei (Objector) (2019) eKLR which cited with authority the case of Arun C. Sharma v Ashana Raikundalia t/a A. Raikundalia & Co. Advocates & 4 Others (2014) eKLR. 14. Further, Section 44 of the Civil Procedure Act provides that in execution proceedings, only the property belonging to the Judgment Debtor is subject to attachment. The Objector has produced proof of ownership of the attached goods, a fact which has not been disputed by the Defendant. There being no evidence challenging the legal or equitable interest over the attached properties belonging to the Objector, the Objector’s application is therefore merited and should be allowed. 15. On costs, the same follows the event. This court has the discretion to direct otherwise. Based on the relationship between the parties, no party should be condemned to pay costs of this application. Each party to bear its own costs. Determination 16. Following the foregone discourse, the upshot is that the following orders do hereby issue: a. That the Notice of Motion dated 05/02/2025 has merits and is allowed on terms that the Warrants of Attachment and Sale and the proclamation thereafter are hereby lifted. b. Each party to bear its own costs. It is so ordered. DATED, SIGNED AND DELIVERED AT MOMBASA, THIS 6TH DAY OF NOVEMBER, 2025. ……………………………… HON. F. WANGARI JUDGE In the presence of: Mr. Omwenga Advocate for the Objector/ Applicant. Ms. Mohamed Advocate for the Plaintiff/ Respondent. N/A by the Defendant. Ms. Salwa, Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19609/eng@2025-11-06 3

page 3 of 3