Mohamed Samnakay v Shammi Kanjiraparambil Thomas

Objector’s case 5. The gist of the application is that the assets the auctioneers intend to attach belong to her and not the judgement debtor. 6. The objector relied on Precast Portal Structures v Kenya Pencil Company Ltd & 2 others [1993] KEHC 100 (KLR) to argue that she has demonstrated ownership of the attached goods. She also relied on Akiba Bank Limited vs Jetha & Sons Limited [2005] KEHC 2307 (KLR), to argue that a party's legal interest in attached property must be protected if duly established. 7. The objector submitted that section 44(1) of the Civil Procedure Act prohibits attachment of property not belonging to the judgment debtor. 8. The objector relied on Simiyu v Sinino [1982-88] 1KAR 630 and Kuronya Auctioneers v Maurice O. Odhoch & Another [2003] eKLR to assert that a party who sets in motion the process of execution against a wrong person, even though not maliciously, becomes liable at common law for damages for trespass and wrongful execution. 9. As to the decree holder’s contention that the objector’s failure to issue a notice of objection is fatal, the objector retorted that strict application of procedural rules should not override substantive justice. The objector relied on Article 159(2)(d) of the Constitution and Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others [2013] eKLR. 10. The objector submitted that the decree holder’s claims regarding her business license are irrelevant to these proceedings. She asserted that licensing issues fall under the regulatory framework of the Kenya Medical Practitioners and Dentists Council (KMPDC) and in this instance, do not negate her proprietary rights over her business assets. 11. The objector asserted that the lease agreement adduced by the objector is a valid lease agreement and it proves that the attached assets belong to her and not the judgement debtor. She challenged the decree holder’s claim that the lease agreement was manufactured to delay execution for want of supporting evidence of forgery. 12. The objector urged the court to allow the application and grant the orders sought. Response 13. The decree holder contended that the objection proceedings are a sham and that the auctioneer cannot be faulted for levying execution of the movable property situated on the premises. 14. The decree holder argued that the notice of objection is a mandatory requirement. It therefore submitted that the application is incompetent for failure to comply with Order 22 Rule 51 (1) of the Civil Procedure Rules. 15. The decree holder contended that the purported lease agreement is a sham to defeat its claim. It highlighted that the judgment debtor is the objector’s husband and that lease agreement is a scheme by a husband and wife to defeat the claim. 16. The decree holder challenged the lease agreement on various fronts. It argued that since the lease is unregistered it only applies inter partes and cannot affect the rights of third party. It relied on ELC Civil Appeal No. 4 of 2016, Marie Stopes (K) Limited v Cecilia Kihara on the effect of an unregistered lease. 17. The decree holders submitted that the purported lease does not bear any consent to lease from the head lessor. It contended that since the lease is unsigned and unstamped, it cannot be received in evidence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7093/eng@2026-04-16 2

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It pointed out that the lease indicates the objector as the guarantor, not as lessee and that the objector could not produce any evidence of payment of rent. 18. The decree holder contended that it is the judgment debtor that is conducting the official business as Spect & Sight not the objector as he holds 634 ordinary shares in his name. It relied on the official company record of Parque Management A Limited, a subsidiary of Parque Management Limited the holder of reversionary interest in the land and building wherein the suit premises are situated. 19. It argued that the objector did not show that she is a certified optometrist practitioner, licensed by the Kenya Medical Practitioners and Dentists Council (KMPDC) hence claimed that she is running an illegal business. Therefore, it contended that the objector has not come to this court with clean hands and therefore deserves no sympathy from this court. That the application was not made in good faith. 20. The decree holder challenged the purported electronic evidence that the applicant sought to submit. It argued that the purported video clip had not been produced to it in satisfaction of the law pertaining to disclosure of documents. It also highlighted that no certificate of electronic evidence has been filed to satisfy section 106B of the Evidence Act. It drew the court’s attention to the notice of objection to production of electronic evidence filed by it. 21. The decree holder urged the court to dismiss the application for want of merit and to lift the existing status quo orders. Oral examination 22. The objector was orally examined on 4.2.2025. Upon cross examination, she admitted that she is married to the judgment debtor. She also admitted that she is not a qualified optometrist or optician. She confirmed that she is not licensed by KMPDC. She acknowledged that it is illegal to conduct business as an optometrist or optician in Kenya without a license from KMPDC. 23. The objector stated that her business is at Park Medical Centre Parklands, 3rd Parklands Avenue, Nairobi. She indicated that the judgment debtor purchased premises on the 3rd floor of the building in his own name t/a Spect & Sight. 24. The objector indicated that she did not know that the judgment debtor held shares in Parque Management Limited. However, when shown the official search, she confirmed that he held 634 shares in the company. 25. The objector confirmed that the letter dated 26.7.2021 by the decree holder to the judgment debtor was stamped by Spect & Sight acknowledging receipt of the letter. 26. The objector stated that following execution proceedings, she went to the decree holder’s office seeking reduction of the amount claimed from the judgment debtor. 27. The objector admitted that she did not obtain the landlord’s consent before her and her husband entered the lease agreement. She also admitted that the lease is neither stamped nor registered with the Ministry of Lands. 28. The objector stated that she was paying Kshs. 840,000/- per year to her husband under the lease. She stated that she was not paying any value added tax on the amount. She also stated that her husband was not issuing any receipts for rent. She further stated that the lease agreement was prepared by an advocate. 29. Upon re-examination, the objector stated that the letter of 26.7.2021 was for a different entity. She clarified that her business involved supplying glasses, not in the category that requires licensing. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7093/eng@2026-04-16 3

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30. The objector maintained that her properties were proclaimed. She also maintained that her husband and the judgment debtor herein is the landlord. She stated that the lease agreement is valid and in force as it is signed by both parties and witness. 31. The objector stated that she meets the advocate whose offices are in the same building. She also stated that the advocate is aware that she is the one who operates the business on the premises. 32. The objector confirmed that she is aware of the fees which they paid. Analysis and Determination 33. The issue for determination is whether the objector has established legal and/ or equitable interests over the proclaimed goods. Threshold 34. The burden is on the objector to establish that it has title to or an equitable interest in the proclaimed goods. The court shall dismiss the objection where it is satisfied that: “ the property was, at the time of attachment, held by the judgment – debtor as his own and not on account of any other person, or that it was held by some other person in trust for the judgment-debtor, or that ownership has changed whereby the judgment – debtor has been divested of the property in order to evade execution or the change is tainted with fraud...” Precast Portal Structures v Kenya Pencil Company Ltd & 2 others [1993] KEHC 100 (KLR) 35. The objector contends that the proclaimed goods belong to her not the judgment debtor. She exhibited a certificate of registration for her business Spect and Sight Enterprises. She also exhibited a lease agreement dated 1.9.2022 between her and the judgment debtor. The lease is duly executed by both parties and attested by two witnesses. 36. The decree holder challenged the admissibility of the lease as evidence because it is unregistered and unstamped. 37. However, an unregistered lease can be admitted in court as evidence of a contract between the parties, particularly to show the existence of a tenancy, the amount of rent paid, and the agreed terms. Mega Garment Limited v Mistry Jadva Parbat & Co. (EPZ) Limited [2016] eKLR, 38. During cross examination, the objector admitted that the judgment debtor is her husband. She claimed that he is her landlord and that she pays a rent of Kshs. 840,000/- per year to him. However, the objector did not PRODUCE receipts as proof of payment of the rent. 39. While the objector relies on the lease agreement to prove ownership of the proclaimed goods, a lease agreement does not automatically prove the ownership of the proclaimed goods. 40. The objector also relied on the certificate of registration of business as proof of ownership of the proclaimed goods. 41. However, the objector has not produced any purchase invoices or receipts to support her claim of ownership of the proclaimed goods. 42. The objector admitted that the judgment debtor is the owner of the premises. She also admitted that the judgment debtor holds 634 shares in Parque Management Limited. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7093/eng@2026-04-16 4

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43. From the above, I am not persuaded that the objector owns the proclaimed goods. I am also not persuaded that the judgment debtor holds no interest and/ or claim in the proclaimed goods as submitted by the objector. 44. The question as to the propriety of the electronic evidence has been overtaken by events. Disposal 45. In the upshot, the objector’s application dated 7.10.2024 is dismissed with costs for want of merit. DATED, SIGNED AND DELIVERED AT NAIROBI THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 16TH DAY OF APRIL, 2026 ------------F. GIKONYO M JUDGE In the presence of: Zul for Decree Holder Ms. Muthoni for Michuki for Objector CA – Ivan/Aggrey https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7093/eng@2026-04-16 5

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