Shah v Medivet Products Ltd & 2 others

5. I have considered the Application, the Adavits led, the Written Submissions and the authorities cited by the parties. Background 6. The Application arises from execution proceedings undertaken by the Plainti/Decree Holder against the 1st Respondent, Medivet Products Limited, in satisfaction of the decree issued in this matter. 7. Pursuant to the execution process, the 2nd Respondent, Elimonyako Auctioneers, issued a proclamation dated 1st July 2026 over movable property found at the premises of the Judgment Debtor. 8. The Objector, Amee Properties Limited, then moved the Court by the present application contending that the proclaimed goods belong to it and not to the Judgment Debtor. The Objector states that it is a separate legal entity and was not a party to the proceedings that resulted in the decree. 9. According to the Objector, it entered into a Loan Agreement with the Judgment Debtor dated 1st May 2022, pursuant to which the Judgment Debtor's plant and machinery were allegedly transferred to the Objector as part payment of the loan. The Objector further relies on a plant and machinery agreement dated 1st November 2022, under which it allegedly leased the plant and machinery back to the Judgment Debtor at a monthly rent of Kshs. 100,000.00 10. The Objector therefore contends that the proclaimed goods are not liable to attachment and sale in execution of a decree against the 1st Respondent. 11. The Plainti/Decree Holder disputes the Objector's claim and contends that the Objector has not established a legal or equitable interest in the proclaimed property. The Plainti maintains that the alleged loan and lease arrangements have not been suciently proved and were intended to frustrate the execution process. The Plainti further points out that the directors of the Objector and the Judgment Debtor are rst-degree relatives. 12. The Plainti therefore urges the Court to dismiss the Application and allow execution to proceed. Replying Adavit 13. In his Replying Adavit sworn on 27th July 2026, Bejul C. Shah, the Plainti/Decree Holder, states that he wishes to proceed with execution and realise the fruits of the Judgment. 14. The Decree Holder avers that the Objector has not provided sucient evidence to establish that the proclaimed plant and machinery were transferred to it as part payment of the alleged loan or that the Judgment Debtor subsequently leased the same property from the Objector. 15. The Decree Holder contends that the Objector has not produced evidence of the alleged loan disbursement, repayment or the monthly rental payments allegedly made by the Judgment Debtor. 16. The Plainti further challenges the admissibility of the alleged loan agreement and lease agreement on the basis that they are not duly stamped as required under the Stamp Duty Act. 17. It is also the Plainti's case that the alleged agreements were prepared and executed for the purpose of frustrating execution. In that regard, the Plainti points to the close family relationship between the directors of the Objector and the Judgment Debtor and urges the Court to nd that the application is intended to delay and defeat the lawful execution of the decree. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/880/eng@2026-09-16 2

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18. The Plainti further submits that the proclamation does not only concern plant and machinery but also includes motor vehicles, computers, desktop and process servers, oce furniture and a water dispenser. It is contended that the Objector has not demonstrated that each of the specic items proclaimed belongs to it. Submissions by the Objector/Applicant 19. The Objector submits that objection proceedings are governed by Order 22 Rule 51 of the Civil Procedure Rules, which permits a person claiming to be entitled to, or to have a legal or equitable interest in, attached property to object to its attachment. 20. The Objector further relies on Section 44 of the Civil Procedure Act, which provides that only property belonging to a Judgment Debtor is liable to attachment and sale in execution. 21. The Objector submits that the Judgment Debtor and the Objector are separate legal entities and that the proclaimed property belongs to the Objector. It is therefore argued that the property cannot lawfully be attached in execution of a decree against the Judgment Debtor. 22. The Objector relies on the decision in Dubai Bank (K) Limited v Come-Cons Africa Limited & Impak Holdings Company Limited [2012] eKLR, where the Court explained that objection proceedings do not nally determine ownership but rather determine whether the Objector has established a legal or equitable interest in the attached property. The burden of establishing such interest rests upon the Objector. 23. The Objector also relies on Sarah Ambrose Achieng t/a Bondo Raki Hardware v Dennis Ambrose Achieng & another; Robina Ng'wono Onyango (Objector/Applicant) [2020] eKLR and submits that where an Objector establishes ownership of proclaimed property and such evidence is not displaced, the attachment should be lifted. 24. The Objector therefore urges the Court to nd that it has established a legal interest in the proclaimed goods and to allow the application with costs. Analysis and Determination 25. Having considered the pleadings, adavits, submissions and authorities, the issue for determination is: “Whether the Objector/Applicant has established a legal or equitable interest in the proclaimed property sucient to warrant the raising of the attachment.” 26. The law governing objection proceedings is found under Order 22 Rule 51(1) of the Civil Procedure Rules, which provides that any person claiming to be entitled to, or to have a legal or equitable interest in, the whole or part of property attached in execution of a decree may object to the attachment. 27. The principles applicable to objection proceedings are now well settled. In Arun C. Sharma v Ashana Raikundalia t/a A. Raikundalia & Co. Advocates & 4 Others [2014] eKLR, the Court held that the Objector bears the burden of proving that he is entitled to or has a legal or equitable interest in the whole or part of the attached property. 28. Similarly, in Dubai Bank (K) Limited v Come-Cons Africa Limited & Impak Holdings Company Limited [2012] eKLR, the Court held that the Court does not nally determine ownership in objection proceedings but determines whether the Objector has a legal or equitable interest in the attached property. The onus of proof lies upon the Objector. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/880/eng@2026-09-16 3

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29. In Precast Portal Structures v Kenya Pencil Company Limited & 2 Others [1993] eKLR, the Court held that the burden is upon the Objector to prove and establish the right to have the attached property released from attachment. A release may be granted where the Court is satised that the property was not held by the Judgment Debtor for himself or in trust for the Judgment Debtor, or that the Objector held the property on his own account. 30. The same principle is reected in Chotabhai M. Patel v Chaprabhi Patel [1958] EA 743, where it was held that the Objector must adduce evidence demonstrating that, as at the date of attachment, he had an interest in the attached property. 31. It follows that the mere assertion that the property belongs to the Objector is insucient. The Objector must place before the Court sucient evidence demonstrating a legal or equitable interest in the specic property that has been attached. 32. In the present case, the Objector's claim is founded on an alleged loan agreement and a subsequent plant and machinery agreement. The Objector's case is that the plant and machinery were transferred to it in partial satisfaction of a loan advanced to the Judgment Debtor and were subsequently leased back to the Judgment Debtor. 33. The Court has carefully considered the material placed before it. The Objector was required to demonstrate not merely the existence of a commercial relationship with the Judgment Debtor, but also its legal or equitable interest in the specic goods proclaimed by the auctioneer. 34. I nd that the Objector has not suciently established the alleged transfer of the proclaimed goods to it. In particular, there is no satisfactory evidence before the Court demonstrating the disbursement of the alleged loan or the manner in which the specic goods proclaimed were transferred to the Objector in part settlement of that loan. 35. There is also no sucient evidence demonstrating that the Judgment Debtor made the alleged monthly rental payments of Kshs. 100,000.00 to the Objector under the alleged lease-back arrangement. 36. Further, the proclamation contains property beyond the alleged plant and machinery. The proclaimed goods include motor vehicles, assorted computers, desktop and process servers, oce chairs, desks and a water dispenser. The Objector has not placed before the Court specic evidence demonstrating that each of those items belongs to it or forms part of the property allegedly transferred pursuant to the alleged loan arrangement. 37. In Abdulahi v Nyaboke & 2 Others [2024] KEHC 15363 (KLR), the Court reiterated that an Objector bears the burden of proving its entitlement to or legal or equitable interest in the attached property. The Court also emphasised the principles in Chotabhai M. Patel, including that the Objector must establish an interest in the property as at the date of attachment. 38. The Court is therefore not persuaded that the Objector has established, on a balance of probabilities, a legal or equitable interest in all the goods contained in the proclamation. 39. The Objector placed reliance on Sarah Ambrose Achieng t/a Bondo Raki Hardware v Dennis Ambrose Achieng & Another; Robina Ng'wono Onyango (Objector/Applicant) [2020] eKLR. That decision is distinguishable because an objection may only succeed where the Objector has rst demonstrated, through credible evidence, an interest in the attached property. In the present case, the evidence does not suciently establish the Objector's interest in the specic proclaimed goods. 40. I have also considered the Plainti's argument that the documents relied upon by the Objector are not duly stamped. However, even without resting this determination solely on the issue of stamping, I nd https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/880/eng@2026-09-16 4

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that the Objector has not adduced sucient evidence connecting the specic proclaimed items to the alleged loan and lease transactions. 41. The Court has also considered the close family relationship between the directors of the Objector and the Judgment Debtor. I agree that a family relationship, by itself, cannot invalidate a legitimate transaction between separate legal entities. However, where the transactions are challenged in objection proceedings, the surrounding circumstances may properly be considered when evaluating whether the Objector has discharged the evidential burden placed upon it. 42. In this case, the Objector was required to produce clear and credible evidence establishing its interest in the specic attached property. On the material before the Court, that burden has not been discharged. 43. The Court is guided by the decision in Mupeki Hauliers Limited v Dooba Enterprises Limited [2024] KEHC 1380 (KLR), where the Court rearmed that the Objector bears the burden of proving its legal or equitable interest in the whole or part of the attached property. The Objector must therefore establish the requisite interest by evidence and not by mere assertion. 44. Consequently, I nd that the Objector has failed to establish, on a balance of probabilities, a legal or equitable interest in the proclaimed goods sucient to justify the raising of the attachment under Order 22 Rule 51 of the Civil Procedure Rules. Conclusion and Disposition 45. The upshot is that the Objector/Applicant's Notice of Motion dated 9th July 2026 lacks merit. 46. Accordingly, I make the following orders: a. The Objector/Applicant's Application dated 9th July 2026 is hereby dismissed. b. The Plainti/Decree Holder is at liberty to proceed with execution in accordance with the law. c. The costs of the Application shall be borne by the Objector/Applicant. 30 Days Right of Appeal. RULING DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 16TH SEPTEMBER ,2026 L.A. MUMASSABBA PRINCIPAL MAGISTRATE 16. 9.2026 In the presence of : M/s Adongo Holding Brief for Mr.Ochwo for the Plainti M/s Christine Githii for Defendant Mr.Karuki for the Objector Applicant Court Assistant: Phoebe. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/880/eng@2026-09-16 5

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