Mulei v Urithi Housing Co-operative Society Limited [2024] KECPT 1376 (KLR)

Mulei v Urithi Housing Co-operative Society Limited (Tribunal Case 365/E171 of 2021) [2024] KECPT 1376 (KLR) (29 August 2024) (Ruling)

Neutral citation: [2024] KECPT 1376 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 365/E171 of 2021

BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

August 29, 2024

Between

Josephine M Mulei

Claimant

and

Urithi Housing Co-operative Society Limited

Respondent

Ruling

1. The matter before the Tribunal for determination is the Notice of Motion Application dated 24th April, 2024 filed by the Applicant, Miriam Murungi Requesting for Orders.a.Spentb.That – Spentc.That upon hearing of this application ex parte, this Honourable Tribunal be pleased to admit the correct and signed supporting affidavit dated 19th April, 2024 and attached herein as part of the record in lieu of the unsigned /undeponed copy.d.That – Spente.That – Spentf.That upon hearing of this application inter-parte, this Honourable Tribunal be pleased to issue an interim Order of injunction restraining the Respondents, their employees, servants and/or agents from attaching the Applicants property contained in Plot Block 110/591 situated along Northern Bypass in Thome Area Nairobi in execution of the decree of this court.g.That upon hearing of this application inter-parte, this Honourable Tribunal be pleased to issue an interim order of injunction restraining the Respondents, their employees, servants and/or agents from attaching the Applicants property in execution of the decree of this court as per the Proclamation notice dated the 11th day of April, 2024 by High Class Auctioneers pending the hearing of this application inter-partiesh.That O.C.S. Ruiru/Runda Police Station does enforce compliance of this order.i.That the costs of this application be provided for.

2. The application is based on the grounds thereunder and is supported by the affidavit of Peter Mwenda Njagi sworn on 24th April 2024. The grounds of the are inter alia …….a.That on 11th April, 2024 agents of the 2nd Respondent/Auctioneers proclaimed office items electronics and furniture in the Maisonette located on Plot No. Block 110/J91 along Northern Bypass in Thome area of Nairobi and left a proclamation Notice of seven (7) days.b.That upon the said Proclamation the application filed an application dated 19/4/2024 seeking injunctive orders supported inadvertently by an unsigned affidavit.c.That on 19th April, 2024 the Tribunal directed the applicant to serve all parties with the said application dated 19th April 2024 pending mention on 30th April, 2024. d.That not preserving the said movable Property is prejudicial to Applicant herein as the proclaimed immovable properties may be attached and carried away, yet they belong to the Applicant.e.That the applicant is apprehensive and genuinely so, that unless this Honorable Tribunal intervenes to protect the Applicant from execution of her property.f.That the balance convenience tilts in favor of the orders being granted.g.That it is only fair, just and in the interest of Justice that the orders sought are granted.

3. In his supporting affidavit 24th April, 2024, the deponent states that he is the Advocate on record for the applicant, and in support of prayer or 3 of the notice of motion, has amended and numbered as exhibit PMN-1 the supporting affidavit signed by the Applicant in support of her application dated 19th April, 2024, which he seeks to have admitted as evidence in lieu of unsigned Affidavit that was filed with the said application dated 19th April, 2024. The deponent reiterates the grounds of the application and states further the Applicant is distinct person from both the decree- holder and he judgement- debtor, that the applicant is a businessman and stands to suffer irreparable injury if the property is attached.

4. In response to the Notice of Motion application dated 24th April, 2024, the 1st Respondent /Decree- Holder filed her Replying affidavit sworn on 7th May, 2024. The 1st Respondent states that the 2nd Respondent did not find the Applicants premises, but acted within the ambit of the Law as per the warrants of attachment of movable property in execution of the decree issued on 26th February, 2024. That the 2nd Respondent acted on the information from an investigator. The 3rd Respondent carries on business on the said Plot No. Block 110/J91, that the applicant is operating as a representative and /or agent of the Judgment - Debtor who is hiding behind the applicant to avoid execution of the warrants of attachment of movable property in execution of the lease.That the applicant portrays himself to the public as a worker and/or Agent of the 3rd Respondents, that the auctioneer did not interfere with the applicants’ enjoyment and possession of the rented property but instead regularly and lawfully proclaimed the Applicants office furniture and goods that the Applicants tenancy agreement is neither dated nor witnessed, that the receipt for the alleged purchased items in the applicants alleged purchase from Muthokinju does not bear the applicants’ name, that the receipt for purchase of items from Odds and Ends on receipts dated 2/7/2020 is addressed to a third party entity, that the alleged purchases by the applicant took place in filing 2020 long before the alleged tenancy took place that the 1st Respondent to suffer irreparable damage, that if the attachment is not allowed, it will be difficult to trace the 3rd Respondent, that the applicant’ application dated 24th April, 2024 has no merit and is an abuse of the court process calculated to circumvent the Tribunal’s warrant of Attachment.

Analysis and Determination 5. We have considered the Notice of Motion Application and Affidavit in support thereof; we have also considered the Replying Affidavit of the 1st Respondent/Decree- holder observe and find as follows: -1. That the affidavit in support of the Notice Motion Application dated 24th April, 2024 is the supporting affidavit sworn on Peter Mwenda Njagi on 24th April, 2024. 2.That the affidavit of the applicant sworn on 19th April, 2024 is not really an annexure to the Applicant’s application dated 24th April, 2024 and not an affidavit in support thereof; hence it is not mentioned in evidence.3. That the Applicant’s application dated 19th April, 2024 was withdrawn on the 30th April, 2024. 4.The affidavit in support of the Applicant’s application has not adduced any evidence to prove ownership by the applicant of the proclaimed goods; similarly, the 1st respondent has not demonstrated that indeed the goods proclaimed in the said house belonged to the 3rd Respondent or that indeed, the premises were 3rd Respondent’s Lawful premises for purposes of execution.5. That despite the statement of the 1st Respondent that her Auctioneer relied on the information of an investigator in deciding to proclaim the goods in the applicant’s premises, no evidence has been adduced to prove the investigation took place and to counter the applicant’s statement that the said house on Plot No. Block 110/J91 was her rental premises.6. That it is not enough for the 1st Respondent to say that the applicant portrays herself to the public as the worker or marketer of the 3rd Respondent and hence the premises rented by her must be the business premises of 3rd Respondent. We therefore must conclude that no prove has been provided, before this Tribunal that the movable property proclaimed by the 2nd Respondent on 1st April, 2024 belong to the 3rd Respondent.

7. In the upshot, we hold that the Applicant’s Application dated 24/4/2024 is merited on ground that a proclamation in execution of a Decree must be undertaken Lawfully and devoid of presumption and/or hearsay.Consequently, we order as follows”-1. Prayers 1,2,3,4 and 5 of the application are spent.2. Prayers 6,7 and 8 of the application are allowed:a.That upon hearing of this application inter-parte, this Honourable Tribunal be pleased to issue an interim Order of injunction restraining the Respondents, their employees, servants and/or agents from attaching the Applicants property contained in Plot Block 110/591 situated along Northern Bypass in Thome Area Nairobi in execution of the decree of this court.b.That upon hearing of this application inter-parte, this Honourable Tribunal be pleased to issue an interim order of injunction restraining the Respondents, their employees, servants and/or agents from attaching the Applicants property in execution of the decree of this court as per the Proclamation notice dated the 11th day of April, 2024 by High Class Auctioneers pending the hearing of this application inter-partesc.That O.C.S. Ruiru/Runda Police Station does enforce compliance of this order. 3. The costs of the Application are granted to the Applicant.

4. File ordered as closed.

JUDGMENT SIGNED, DATED 29TH DAY OF AUGUST, 2024. Hon. B. Kimemia Chairperson Signed 29. 8.2024Hon. J. Mwatsama Deputy Chairperson Signed 29. 8.2024Hon. Beatrice Sawe Member Signed 29. 8.2024Hon. Fridah Lotuiya Member Signed 29. 8.2024Hon. Philip Gichuki Member Signed 29. 8.2024Hon. Michael Chesikaw Member Signed 29. 8.2024Hon. Paul Aol Member Signed 29. 8.2024Court Assistant JonahHashim advocate for the Respondents/ClaimantsMwangi & Partners for Applicants- No ApplicantHon. J. Mwatsama Deputy Chairperson Signed 29. 8.2024