1. The objector’s notice of motion dated 17.3.2025 seeks orders restraining the decree holder or his agent, Jenk’s Auctioneers from attaching and selling its property.
2. The application is made under Order 22 Rule 51 (2) of the Civil Procedure Rules. It is supported by the affidavit sworn by the objector’s Head of Legal, Brian Stima on 17.3.2025.
3. The main contention is that the goods proclaimed by the decree holder’s agent, Jenk’s Auctioneers, comprise of medical equipment and assorted pharmaceutical drugs which its supplied and lent the judgment debtors on diverse dates.
4. The objector asserted that the property in the goods did not pass to the judgment debtors. It therefore submitted that it has a prima facie case with a probability of success, referring to the documentary evidence in proof of ownership, including invoices and agreements.
5. The objector contended that if the proclaimed goods are sold, it would suffer irreparable loss that cannot be compensated by damages. It claimed that the goods are critical for its operations, patient care and business community.
6. The objector submitted that the balance of convenience favours the granting of the injunctive relief because, as a third party, it should not suffer execution for a decree it was not party to.
Response
7. The decree holder opposed by the replying affidavit sworn by Bishar Abdirahman Hussein in March 2025. He contended that the objector has not established interest in the attached assets to warrant issuance of the orders sought.
8. The decree holder challenged the agreement for sale produced by the objector because it is not stamped; it is not a hire purchase or lease agreement and the sale ought to have been completed as it provides for payment in 30 instalments from February 2022. He faulted the objector for failing to indicate the payments made; the statement for Kshs. 14,026,694/- has no nexus to the purchase price of Kshs. 37,404,000/-.
9. The decree holder further complained that neither serial numbers nor ownership documents are attached.
10. The decree holder urged that the court allows him to proceed with attachment and execution of the decree.
Oral submissions on 12.05.2026
11. The objector’s counsel stated that the objection is limited to the CT scan which is the objector’s property that was leased to the judgment debtors. He asserted that once the objector establishes interest prima facie, the burden of proof shifts to the decree holder to show that the property belongs to the judgment debtors. He indicated that the objector and the decree holder could sell it and split the proceeds.
12. The decree holder’s counsel echoed the depositions in the replying affidavit save to add that the out of court negotiations failed despite their efforts. He claimed that the objector did not commit to any reasonable settlement. He also asserted that there is no demonstrable ownership.
Analysis and Determination
13. The issue for determination is whether the objector has established legal and/ or equitable interests over the proclaimed goods.
14. The burden is on the objector to establish that it has title to or an equitable interest in the proclaimed goods. Precast Portal Structures v Kenya Pencil Company Ltd & 2 others [1993] KEHC 100 (KLR)
15. The objection is limited to the CT scan. The objector asserted that it is its property that was leased to the judgment debtors.
16. On the other hand, the decree holder contended that the objector has not demonstrated ownership.
17. The objector exhibited: -
(1) a statement of account dated 17.3.2025 showing a balance of Kshs. 14,026,694;
(2) a sale agreement dated 8.2.2022 for the supply, installation and commissioning of medical equipment (the CT scan Kshs. 37,000,000,000/-);
(3) Invoice no. 088711 dated 12.2.2022 for Kshs. 37,000,000/-; and
(4) Delivery note dated 12.2.2022.
18. The decree holder contended that the agreement is unstamped. However, under paragraph 1 (2) of the Schedule to the Stamp Duty Act, an agreement relating to the sale of goods is exempted from stamp duty.
19. The agreement exhibited is for the supply, installation and commissioning of medical equipment. It is an agreement for the sale of goods and therefore exempted from stamp duty and section 19 of the Stamp Duty Act on inadmissibility of unstamped documents is not applicable.
20. The agreement contains a retention of ownership clause. It provides that the equipment to be supplied shall remain the property of Crown Healthcare until the Labib Hospital pays all monies as per the terms of this sale agreement.
21. The decree holder argued that the agreement is not a lease or hire purchase agreement where the lessor or the owner retains ownership. However, although the subject agreement is neither a lease or hire purchase agreement, it contains a retention of ownership clause.
22. The decree holder also argued that according to the payment terms set out in the agreement, the sale ought to have been completed by the date of attachment.
23. The agreement contemplated that the sale ought to have been completed upon the payment of Kshs. 29,923,200 in thirty equal monthly installments of Kshs. 997,440.00 starting from 31.3.2022. If all payments were made as agreed, the date of completion would be 31.8.2024.
24. But the statement of account exhibited shows an outstanding balance of Kshs. 14,026,694.
25. Completion was pegged on the full payment of the purchase price not the mere passage of time.
26. The decree holder complained about the lack of evidence of previous instalments paid. However, I do not consider that omission, by itself, sufficient to defeat the objector’s claim that the balance of Kshs. 14,026,694 remains outstanding.
27. The decree holder further faulted the objector for failing to produce ownership documents and the serial number of the CT scan. However, the delivery note identifies the CT scan by its serial number.
28. Conversely, the proclamation of attachment only describes it as “Computerized Tomography Scan” without specifying the serial number. As such, the decree holder has not demonstrated that the attached CT scan is different from the one supplied by the objector.
Conclusion
29. In conclusion, I find that the objector has established a legal interest in the attached goods. The agreement contains a retention of ownership clause, and the evidence demonstrates that a balance of the purchase price remains outstanding.
30. Accordingly, ownership of the CT scan vested in the objector at the time of the attachment.
31. The objector expressly indicated that it is amenable to a joint sale and apportionment of the proceeds between it and the decree holder.
Disposal
32. Therefore, considering the foregoing proposal and in the interest of justice and practical resolution of the matter, I make the following orders: -
(1) The attachment over the CT scanner shall remain in force pending the settlement of the terms of sale through public auction or private treaty before the Deputy Registrar.
(2) The parties shall appear before the Deputy Registrar on a date to be fixed for the settlement of the terms of the public auction or private treat including reserve price and the distribution of proceeds, considering the objector’s retained ownership interest and the decree holder’s entitlement under the decree.
Dated, signed and delivered at Nairobi through Microsoft Teams online application this 30th day of July 2026
--------------
F. Gikonyo M
Judge
In the presence of: -
Muganda for Decree Holder
Mamboleo for Objector
No appearance for Judgment Debtor
CA- Ivan/Aggrey
2. The application is made under Order 22 Rule 51 (2) of the Civil Procedure Rules. It is supported by the affidavit sworn by the objector’s Head of Legal, Brian Stima on 17.3.2025.
3. The main contention is that the goods proclaimed by the decree holder’s agent, Jenk’s Auctioneers, comprise of medical equipment and assorted pharmaceutical drugs which its supplied and lent the judgment debtors on diverse dates.
4. The objector asserted that the property in the goods did not pass to the judgment debtors. It therefore submitted that it has a prima facie case with a probability of success, referring to the documentary evidence in proof of ownership, including invoices and agreements.
5. The objector contended that if the proclaimed goods are sold, it would suffer irreparable loss that cannot be compensated by damages. It claimed that the goods are critical for its operations, patient care and business community.
6. The objector submitted that the balance of convenience favours the granting of the injunctive relief because, as a third party, it should not suffer execution for a decree it was not party to.
Response
7. The decree holder opposed by the replying affidavit sworn by Bishar Abdirahman Hussein in March 2025. He contended that the objector has not established interest in the attached assets to warrant issuance of the orders sought.
8. The decree holder challenged the agreement for sale produced by the objector because it is not stamped; it is not a hire purchase or lease agreement and the sale ought to have been completed as it provides for payment in 30 instalments from February 2022. He faulted the objector for failing to indicate the payments made; the statement for Kshs. 14,026,694/- has no nexus to the purchase price of Kshs. 37,404,000/-.
9. The decree holder further complained that neither serial numbers nor ownership documents are attached.
10. The decree holder urged that the court allows him to proceed with attachment and execution of the decree.
Oral submissions on 12.05.2026
11. The objector’s counsel stated that the objection is limited to the CT scan which is the objector’s property that was leased to the judgment debtors. He asserted that once the objector establishes interest prima facie, the burden of proof shifts to the decree holder to show that the property belongs to the judgment debtors. He indicated that the objector and the decree holder could sell it and split the proceeds.
12. The decree holder’s counsel echoed the depositions in the replying affidavit save to add that the out of court negotiations failed despite their efforts. He claimed that the objector did not commit to any reasonable settlement. He also asserted that there is no demonstrable ownership.
Analysis and Determination
13. The issue for determination is whether the objector has established legal and/ or equitable interests over the proclaimed goods.
14. The burden is on the objector to establish that it has title to or an equitable interest in the proclaimed goods. Precast Portal Structures v Kenya Pencil Company Ltd & 2 others [1993] KEHC 100 (KLR)
15. The objection is limited to the CT scan. The objector asserted that it is its property that was leased to the judgment debtors.
16. On the other hand, the decree holder contended that the objector has not demonstrated ownership.
17. The objector exhibited: -
(1) a statement of account dated 17.3.2025 showing a balance of Kshs. 14,026,694;
(2) a sale agreement dated 8.2.2022 for the supply, installation and commissioning of medical equipment (the CT scan Kshs. 37,000,000,000/-);
(3) Invoice no. 088711 dated 12.2.2022 for Kshs. 37,000,000/-; and
(4) Delivery note dated 12.2.2022.
18. The decree holder contended that the agreement is unstamped. However, under paragraph 1 (2) of the Schedule to the Stamp Duty Act, an agreement relating to the sale of goods is exempted from stamp duty.
19. The agreement exhibited is for the supply, installation and commissioning of medical equipment. It is an agreement for the sale of goods and therefore exempted from stamp duty and section 19 of the Stamp Duty Act on inadmissibility of unstamped documents is not applicable.
20. The agreement contains a retention of ownership clause. It provides that the equipment to be supplied shall remain the property of Crown Healthcare until the Labib Hospital pays all monies as per the terms of this sale agreement.
21. The decree holder argued that the agreement is not a lease or hire purchase agreement where the lessor or the owner retains ownership. However, although the subject agreement is neither a lease or hire purchase agreement, it contains a retention of ownership clause.
22. The decree holder also argued that according to the payment terms set out in the agreement, the sale ought to have been completed by the date of attachment.
23. The agreement contemplated that the sale ought to have been completed upon the payment of Kshs. 29,923,200 in thirty equal monthly installments of Kshs. 997,440.00 starting from 31.3.2022. If all payments were made as agreed, the date of completion would be 31.8.2024.
24. But the statement of account exhibited shows an outstanding balance of Kshs. 14,026,694.
25. Completion was pegged on the full payment of the purchase price not the mere passage of time.
26. The decree holder complained about the lack of evidence of previous instalments paid. However, I do not consider that omission, by itself, sufficient to defeat the objector’s claim that the balance of Kshs. 14,026,694 remains outstanding.
27. The decree holder further faulted the objector for failing to produce ownership documents and the serial number of the CT scan. However, the delivery note identifies the CT scan by its serial number.
28. Conversely, the proclamation of attachment only describes it as “Computerized Tomography Scan” without specifying the serial number. As such, the decree holder has not demonstrated that the attached CT scan is different from the one supplied by the objector.
Conclusion
29. In conclusion, I find that the objector has established a legal interest in the attached goods. The agreement contains a retention of ownership clause, and the evidence demonstrates that a balance of the purchase price remains outstanding.
30. Accordingly, ownership of the CT scan vested in the objector at the time of the attachment.
31. The objector expressly indicated that it is amenable to a joint sale and apportionment of the proceeds between it and the decree holder.
Disposal
32. Therefore, considering the foregoing proposal and in the interest of justice and practical resolution of the matter, I make the following orders: -
(1) The attachment over the CT scanner shall remain in force pending the settlement of the terms of sale through public auction or private treaty before the Deputy Registrar.
(2) The parties shall appear before the Deputy Registrar on a date to be fixed for the settlement of the terms of the public auction or private treat including reserve price and the distribution of proceeds, considering the objector’s retained ownership interest and the decree holder’s entitlement under the decree.
Dated, signed and delivered at Nairobi through Microsoft Teams online application this 30th day of July 2026
--------------
F. Gikonyo M
Judge
In the presence of: -
Muganda for Decree Holder
Mamboleo for Objector
No appearance for Judgment Debtor
CA- Ivan/Aggrey