Julius Owino Abiero & Riley Falcon Security Services Ltd v Oscar Otieno Odongo t/a Odongo Investment Auctioneers [2017] KEHC 4333 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CONSTITUTIONAL PETITION NO. 7 OF 2015

TOBIAS O. SEE...........................................................................................................PETITIONER

VERSUS

MASENO UNIVERSITY & 3 OTHERS................................................................RESPONDENTS

AND

JULIUS OWINO ABIERO...................................................................................1ST OBJECTOR

RILEY FALCON SECURITY SERVICES LTD....................................................2ND OBJECTOR

VERSUS

OSCAR OTIENO ODONGO T/A ODONGO INVESTMENT AUCTIONEERS.....RESPONDENT

RULING

The application before me today is a notice of motion dated 27th June 2017 and it seeks an order that the motor vehicle attached, Mercedes Benz, KAS 133D be declared to be that of the Objector, Julius Owino Abiero.  Since the application is an objection to execution, it is the duty of the person attached to show that the goods attached belong to him and not the judgment debtor.

The Objector has shown that motor vehicle KAS 133D belongs to him by producing a copy of the Registration Book (the log book).  He was registered as at 23rd November 2010.  Furthermore, a search certificate dated 27th June 2017 shows that he is still the registered owner.  No evidence has been produced to show that the judgement debtor is the beneficial owner.  Accordingly, the attachment of motor vehicle KAS 133D is raised.

The other limb of the application relates to a declaration that the attachment of, "any other moveable(s) found during service," as set out in the proclamation dated 13th December 2016 be declared null and void.  It is my view that the proclamation must set out in sufficient details the description, condition and value of every item proclaimed and attached to enable the judgement debtor or any other person such as the Objector know what has been attached.  In this respect, the proclamation is deficient to the extent that it does not give the description of items to be attached.  No attachment and sale can flow from the defective proclamation.

In summary, the objection succeeds as motor vehicle NO. KAS 133D belongs to the Objector and there being no attachable assets set out in the proclamation, the attachment is raised.

The Decree Holder shall pay costs of Kshs. 40,000/= for the attachment.

D. S. MAJANJA

JUDGE

10. 07. 2017

COURT:  Ruling read and delivered in open Court.

D. S. MAJANJA

JUDGE

10. 07. 2017