JAMES TOROITICH KISA v MUSA O. OMUSE, KARIRA N.G. T/A. KARIRA & CO. ADV., KIGAMWA R.G. T/A KARIRA & CO. ADV. & SIN MUNGE T/A SANJOMU AUCTIONEERS (K) LTD. [2009] KEHC 247 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITALE

Civil Suit 46 of 2006

JAMES TOROITICH KISA............................................PLAINTIFF.

VERSUS

MUSA O. OMUSE                           )

KARIRA N.G. T/A. KARIRA & CO. ADV. )

KIGAMWA R.G. T/A KARIRA & CO. ADV.)............DEFENDANTS.

SIN MUNGE T/A SANJOMU              )

AUCTIONEERS (K) LTD.                   )

REASONS FOR RULING.

On the 26th day of November 2008, I heard the applicant application by way of chamber summons dated 15th September, 2008. I dismissed the same and reserved my ruling for doing so, which I now give. But first the background.

By a chamber, summons dated 15th September, 2008, pursuant to the provisions of Order XX1 Rules 56 and 57 of the Civil Procedure Rules, the applicant seeks orders:-

1. That this honourable court be pleased to order that the proclaimed head of cattle and calves belong to the objector.

2. That the honourable court be pleased to make an order raising proclamation and attachment of the 200 head of cattle and 20 calves.

3. That costs of the application be provided for.

The application is based on the grounds.

(a)That the objector is the beneficial owner of all the 200 head of cattle and 20 calves proclaimed herein.

(b)That the objector has not been a party to the suit herein.

(c)That, the objector will suffer irreparably unless the attachment is raised.

On behalf of the applicant it was argued, that she is one of the beneficiaries of all that herd of cattle being bred at Macheo Ltd, a farm situated in Kitale.

That the said herd of cattle had been bequeathed upon her and Mr. Yano Kipkech, by the plaintiff, by way of a gift as per the Trust Deed exhibited as “MFK 1”.

The defendants taxed a bill of costs against the plaintiff herein on 19th March, 2008 and an order to that effect was issued on 2nd July, 2008 condemning the plaintiff to pay costs of Ksh. 170,000/= within thirty (30) days from the date of the issuance of the order.

Subsequently, M/s. Igara Auctioneers proclaimed, inter-alia, two hundred herd of cattle valued at Ksh. 40,000/= as per proclamation exhibited as ‘MFK 2”.

By reason of the fact that the said herd of cattle belongs to her and Yano Kipkech, in terms of the Trust Deed, and by reason of the fact that they are not parties to suit the said herd of cattle should not be subjected to attachment and sale at all.

The application was served upon the firm of Onganda & Co. Advocates and M/s. Letangule & Co. Advocates. The two firms of advocate, aforesaid signed a consent dated 8th September, 2008 to the effect that there be change of advocates from Oganda & Co. Advocates to Letangule & Co. Advocates.

I ruled, ad-hoc, that there being no application for change of advocates on the basis of which Letangule & Co. Advocates counsel could take over from Oganda & Co. Advocates, then the firm of Oganda & Co. Advocates is still on record for the plaintiffs including any appeal or review (see order 111 of the Civil Procedure Rules).

On behalf of the applicant it was argued, that the application was served on the firm of G.R. Otieno & Co. advocates on 16th September, 2008. The replying affidavit sworn on 19th November, 2008 and filed on 24th November, 2008 was served out of time, courtesy of the provisions of order L Rule 16 (3). I was thus urged to strike out the replying affidavit and to allow the application to proceed ex-parte.

On behalf of the respondent, it was conceded that the replying affidavit was filed out of time. I then struck out the replying affidavit aforesaid but, in my discretion, allowed the respondent leave to reply to the application only on points of law.

Mr. Yano for the applicant urged me to find that on the evidence, the objector is the wife of the plaintiff, who is the judgment debtor. The trust deed dated 4th August, 2006 and marked as exhibit “MFK 1” is signed by the plaintiff, objector and a stranger by the name of Yano Kipkech. That said Trust Deed is not registered under the Stamp Duty Act (Cap 481) Laws of Kenya as enjoined by relevant provisions of the said statute. Hence the Trust Deed lacks the requisite evidential value.

The objector is not a party to this suit. She only has an interest in the attached herd of cattle on the basis of the Trust Deed, which has no evidential value, by reason of matters aforesaid. There is thus no evidence to sustain the objection.

Mr. Otieno, on behalf of the respondent argued that, in law, the objector has not annexed consent of Yano Kipkech hence an affidavit in support is without authority and hence has no evidential value.

It was conceded, however, that the Trust Deed is not registered but is in law supposed to be registered hence of no evidential value. In any event the Trust Deed being a gift, it should be complete. The said Trust Deed as worded is reprobative and approbative all at the same time. In effect its contents is contradictory and the court should not give effect to it being in that state.

I have carefully analysed the evidence in support and against the application. I have agonized over the same. I have also looked up the relevant law, Section 19 of the Stamp Duty Act (Cap 480) Laws of Kenya provides as follows:-

19. “ (1) Subject to the provisions of subsection (3) of this section and to the provisions of sections 20 and 21, no instrument chargeable with stamp duty shall be received in evidence in any proceedings whatsoever, except –

(a)in criminal proceedings; and

(b)in civil proceedings by a collector to recover stamp duty.

Unless it is duly stamped

2. No instrument chargeable with stamp duty shall be filed, enrolled, registered or acted upon by any person unless it is duly stamped.”

In the premises since. it is conceded that the trust deed is not registered, in law, it has no evidential value. That trust deed being the cradle upon which the objection is based, the objection has no basis therefor.

The foregoing apart, the said trust deed is reprobative and approbative all at the same time. Being contradictory, it is not an instrument upon which a court of law would base its finding. I discount it. That being the case, there is accordingly no evidence upon which the application is based.

Those are the reasons why I dismissed the chamber summons dated 15th September, 2008.

Dated and delivered at Kitale 18th day of September 2009.

N.R.O. OMBIJA.

JUDGE.