Applicant’s case
The application before me is dated 5th March 2025. The application seeks orders that any Attachment, Sale, Transfer, or taking over of Possession of property Land Title Number Ruiru Town/261 registered in the names of Gerald Novac and Lonnie Brooks (Trustee of Baptist Bible Mission of East Africa), such Sale or Transfer being carried out by Agunja Traders Auctioneers or any other Auctioneers on 07/03/2025 or on any other date in execution of the Decree herein, be lifted, cancelled and set aside in its entirety, and the said property be reverted back to the aforesaid registered owners Gerald Novac and Lonnie Brooks. The Attachment herein, and any Orders, Warrants for Attachment and Sale of property Land Title No. Ruiru Town/261, be lifted, vacated and set aside in their entirety. The Ruling and Orders of the court herein dated 7th November 2024, be set aside and vacated, and the Decree Holders' two Notices of Motion dated 19th August 2024 and 27th September 2024 be heard afresh. Costs of this application be borne by the Decree Holder.
The application is based on grounds that the objectors are neither parties to this suit nor are they the Judgment Debtors. According to the applicants, the objectors are not liable for settlement of the Decretal sum herein, nor are they available for attachment and sale towards settlement of the Decree herein. In spite of the foregoing, the Objectors' property Land Title No. Ruiru Town/261 has been attached and advertised for sale by public auction on 7th January 2025 in of the Decree herein.
Previous Ruling/Orders adverse to the Objectors herein were delivered by the court prematurely and irregularly on 7th November 2024 greatly prejudicing the Objectors, a mistake the court has readily owned up to and apologized for the same, and granted "liberty to apply. The intended sale of the Objectors' property is being carried out unlawfully and there has been no Warrants of Attachment and Sale of the property, by the court. The court has not issued any Public Notice and Advertisement, any Settlement of Terms of Sale, as mandatorily required by law. The auctioneers have not issued to the Objectors who are the registered owners of the said property a Notification of Sale, or Redemption Notice over the same as mandatorily required by law.
The applicants lament that the lawful Time for Sale of the said property/land has not crystalized, and the intended sale of the property is premature, since the Notices and timelines prescribed by law have not been met. The entire Attachment and intended Sale of the Objectors' property is bad in law and an abuse of court process
In the supporting affidavit of Gerald Novak, he states that he is an American citizen and a Baptist Missionary residing in Kenya. He is the 2nd objector. That the objectors are Baptist Bible Missionaries of East Africa and trustees duly registered and incorporated as a juristic person. The applicants state that Lonnie Brooks the 3rd Objector Lonnie Brooks is not a trustee of Baptist Bible Mission of East Africa Registered Trustees (1st Objector), and nor is he resident in Kenya. Lonnie Brooks is an elderly retired Reverend of the Baptist Church. He is in his eighties. He lives in America. He retired as a Trustee of the 1st Objector over twenty-five years ago, and he returned to America where he has lived ever since.
Gerald Novak and Lonnie Brooks are the registered proprietors of property land Title Number Ruiru Town/261 situate in Ruiru town. They have been the registered proprietors thereof since 1986. On the property stands a church known as the Ruiru Bible Baptist Church. The property does not house any institution other than the church, contrary to some Valuation Report filed in court earlier by the Decree Holder in support of one of his many earlier applications herein. The applicant states that the supposed Valuation earlier filed by the Decree Holder herein is not of the said property Ruiru Town/261. Indeed, no Valuation has ever been carried out on the said church property Ruiru Town /261. The property Ruiru Town /261 was advertised for sale by Public Auction on 30th: January 2025 pursuant to an Order of the court in this matter but the auction did not take place. There was absolutely no auction, no bidding, and no bidders at the advertised venue of the auction. This was likely because not many people would ordinarily be keen on buying a church. The threat to the property is however still alive, as the Auctioneer could re-advertise the property for sale. The Attachment of the property has not been lifted and remains if force.
The Attachment and intended sale of the said property is pursuant to a Ruling of this court dated 07/11/2024, delivered in respect of two different applications dated 26/08/2024 and 27/09/2024 made by the Plaintiff/Decree Holder.
The Objectors herein opposed the said applications vide the Grounds of Opposition and Preliminary Objection dated 25th September 2024 and 16th October 2024. The objector’s participation in those applications was at the invitation and service of those applications upon them by the Plaintiff/Decree Holder. They participated in the said applications in a bid to stop the then intended attachment of their property. They are still entitled to object to the attachment at any time before sale of the now attached property, in line with Order 22 rule 5l of the Civil Procedure Rules.
The aforesaid Ruling dated 7th November 2024 was delivered irregularly and prematurely twenty-one (21) days before the due date of 28th November 2024, which was the date that the court had set for Ruling on the application dated 27th September 2024. The Submissions on the application dated 27th September 2024 were yet to be filed by the time the Ruling was delivered prematurely. Indeed, the timelines set by the court for the filing of the said Submissions had not yet lapsed. A reading of the said combined Ruling dated 7th November 2024 also reveals that no mention or any consideration at all was made on their Submissions dated 7th November 2024, which Submissions had been duly filed and were on the court record. Those Submissions were clearly not taken in to account.
Their Advocates’ letter dated 6th December 2024, raised the foregoing concerns with the court, regarding the premature Ruling and the subsequent misleading communication/email/s from the court to the effect that the Ruling had been rescheduled to 11th December 2024 and later to 18th December 2024, when all along the Ruling had already been delivered on 7th November 2024. Indeed, the court responded to the said letter, by way of Directions issued by the Hon. Judge on 18th December 2024, wherein the court admitted and apologized for the aforesaid irregularities, which the court attributed to "technological misinterpretations by the court". The court also gave parties 'liberty to apply", which liberty they now hereby avail themselves. They have since learnt that the property Ruiru Town/261 had been advertised for sale on 30th January 2025. The advert was placed in the Standard Newspaper on 14th January 2025. That proposed auction did not take place. The property has now been slated for sale by auction on Friday 7th March 2025.
None of these Notifications or earlier advertisements have ever been served or otherwise notified to the registered proprietors. They have only now learnt of them from a friend who the Auctioneer tried to interest to purchase the property. No Notification of Sale and no Redemption Notice of the property has ever been served upon the applicants.
Their advocates on record herein have also checked through the court file at the court registry, and in fact, no Warrants of Attachment and no Warrants of Sale of the said property are on the court record, nor have been issued court, as mandatorily required under Rule 6 and Rule 11 (a) & (b) of the Auctioneers Rules.
The applicant contend that the "Time of Sale" of the said property has not crystalized. This is because no "Public Notice has been affixed in the precincts of the court of the Judge ordering the sale", as mandatorily required under Order 22 rule 58 of the Civil Procedure Rules. They pray that the court do set aside and vacate its dated 07/11/2024, and do lift and cancel the Attachment/ intended Sale of Land Title No. Ruiru Town /261.
Respondents Responce
The respondent decree holder on his part states that the issues raised in the application and the objection were already dealt with by this court and a ruling delivered and orders granted. The applicants did not appeal against the orders granted and cannot bring this court the same issues for deliberation. The matter is Res Judicata so speak. The respondent states that it is therefore dishonest on the part of the applicants to allege that the ruling of 7th November 2024 was irregular or pre-mature as the proceedings and directions by the court were very clear.
The applicants' advocate was in court on 17th October 2024 during proceedings and that the court specifically directed the parties to prepare and file written submissions on both applications of 19th August 2024 and 219.2024. This not been denied. The attached property belongs to Baptist Bible Mission of East Africa through representation by Registered Trustees and as at this moment the registered Trustees for Ruiru Town/261 are Gerald Novak and Lonnie Brooks their ages notwithstanding and as such Trustees of Baptist Bible Mission of East Africa, the law allows any party aggrieved against the institution to sue all or any of them and so all orders against the institution are binding against all the Trustees irrespective of whether they are parties to the suit or not.
It is not true that no Notification of Sale was served upon the Respondents. That they were served on 12th November 2024 and received by a member of staff called Milka who signed. It is also not true that there was no Public Notice and Advertisement of the intended sale by public auction. The intended sale by auction has in fact been advertised twice.
The court cannot be asked to set aside the attachment as the Order of Prohibition was granted by the court against property title number Ruiru Town/261 as appears in the Official Search. Execution of the decree is more than half way complete and the applicants should not be allowed to interfere with the process unless they are offering to settle the whole decree. This objection and notice of motion are brought in bad faith and is part of continuous attempt by the applicant to defeat justice.
Gerald Novak and Lonnie Brooks are the registered proprietors of property title number Ruiru Town/261. The ownership is not in their personal capacity. They own the parcel of land in their capacity as Trustees of Baptist Bible Mission of East Africa. As such Trustees, they are parties to this suit by virtue of section 3(3) of the TRUSTEES (Perpetual Succession) Act Cap 164. The section provides that upon being granted a Certificate of Registration, "The Trustees Shall Thereupon Become a Body Corporate by the name described in the Certificate and have the power to sue and be sued in their name.
The respondent invokes Order 31 rules 1 and 2 about the liability of trustees which provides that in all suits concerning property vested in a trustee ... where there several trustees ... they shall be made parties to a suit
Against one or more of them. According to the respondents, this means that Gerald Novak and Lonnie Brooks are parties to this suit even though they were not joined in it. The allegation that Lonnie Brooks is no longer a Trustee is not backed by any evidence or proof. On the contrary, clear proof of his trusteeship is the Land Certificate availed by them.
The respondent differs with the applicant’s argument that property Ruiru Town/261 was not the suit property in this case and cannot be attached. He contends that Section 38(1) of the Civil Procedure Act grants this court power to enforce execution of a decree. It provides that subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree-holder order execution of the decree by attachment and sale or by sale without attachment of any property. He urges the court to find that the objectors/applicants are liable to the decree-holder as Ruiru Town/261 is one of the properties owned by Baptist Bible Mission of East Africa through trustees.
On whether the applicants/objectors deserve the prayer to have the property attached released from attachment the respondent contends that the objectors/applicants have not discharged the burden to prove and establish their right as individuals to property title number Ruiru Town/261.
Section 44(1) of the Civil Procedure Act clearly supports the attachment as lawful and within the definition of property liable to attachment and sale in execution of a decree. It provides that all property belonging to a judgment debtor, including property over which or over the profits of which he has a disposing power which he may exercise whether that property is held in his name or in the name of another but on his behalf, shall be liable to attachment and sale in execution of a decree".
In this application, the objectors/applicants cannot be heard to say that they hold Ruiru Town/261 on their own personal account. The court is not being called upon to establish the ownership of Ruiru Town/261 per se. The issue for the court is to determine whether the applicants/objectors are in possession of the attached property and if they are, is it on their own account or as trustees.
Although it is alleged that the objectors/applicants are ignorant about this case and have never been served or aware of its existence, the respondent has availed to the court evidence that proves otherwise. The court is invited to peruse two exhibits in the respondent's bundle of pleadings dated the 27.9.2024. The 1st exhibit is on page 26, it is a letter dated the 18.3.2021. It is written by Baptist Bible Mission of East Africa and addressed to Konosi & Company Advocates. The letter is in regard to this case and specifically states that “we instruct you to represent us in the above captioned matter. Please proceed to peruse the court file and file the necessary documents and advise us the status of the proceedings".
Among the signatories to the letter is Gerald Novak one of the applicants/objectors in this application. He also signed the letter dated 19.4.2021. Six people have signed the two letters in their capacity as Trustees of Baptist Bible Mission of East Africa. Of the six, Olaf Konnerup is one of the judgment debtors while Gerald Novak is one of the objectors. This leaves no doubt that the attachment and intended sale of property Ruiru Town/261 is perfectly within the law.
ANALYSIS AND DETERMINATION
The genesis of this application is the suit filed by George L. M Gichimo T/A Jerusaleum Gate Enterprise Holder/Respondent against James Eberhard Olaf Konnerup who were sued in their capacity as Trustees of Baptist Bible Mission of East Africa Registered Trustees. The plaintiff obtained judgment against the said James Eberrhard and Olaf Konnerup as the registered trustees of the Baptist Mission of East Africa registered trustees. These objection proceedings have been brought by Gerald Novak and Lonnie Brooks who claim that they are neither parties to the suit nor judgment debtors. The applicant have not produced the certificate of incorporation to assist the court to establish whether the trustees are a juristic person.
Trusts in Kenya are created under the Trustees Act or the Trustees (Perpetual Succession) Act (Cap.164 of the Laws of Kenya) (Act). A Trust having been established by way of a Trust deed ought to be stamped and then registered at the Lands Registry under the Registration of Documents Act (Chapter 285 of the Laws of Kenya). The process of registration of the Trust deed pursuant to CAP 285 establishes it as an unincorporated Trust which does not have any distinct legal personality of its own.
The implication of an unincorporated trust is that the Trust can only own property, enter into contracts or do any other thing in the name of its trustees but not in its own name, that is in the name of the Trust. An unincorporated Trust does not have a separate legal existence of its own separate from its trustees. This poses a challenge when there are a change of trustees as it happened in this case either by application of Law or under the provisions of the Trust deed, as changes are required to be individually noted on every ownership document.
The most common mistake in formation of Trusts in Kenya is not following up registration under the Trustees (Perpetual Succession) Act (Act). The Act governs the incorporation of Trusts and provides for a defined structure on operations of Trusts and Trustees duties.
The registration under the Act accords a Trust as a separate legal status and is able to own property in its own name, enter into contracts and do any other thing in its own name. The Trust would upon registration under the Act have a separate and distinct legal identity.
Section 3 (1) of the Act provides, inter-alia, that the trustees who have been appointed by any body or association established for any religious, educational, literary, scientific, social, athletic or charitable purpose or who have constituted themselves for any such purpose may apply in under the Act, for incorporation a corporate body.
Section 4 of the Act provides that upon issuance of the certificate of incorporation (under the Act) ,it shall confer and vest in the body corporate(now incorporated as a result of issuance of certificate) all movable and immovable property and any interest therein belonging to or held by any person or persons for the benefit of the trust concerned. In this case, there is no evidence that the trust was incorporated as required by Law as no certificate of incorporation was produced.
The objectors known as Baptist Bible Mission of East Africa registered trustees Gerald Novok and Lonnie Brooks were the registered trustees and the registered owners of the attached property known as Ruiru Town 261. The judgment debtors in this matter are the registered trustees James Eberhard and Olaf Konnerup who were sued in their capacity as the registered trustees of the Baptist Bible Mission of East Africa. I do find that the objectors are parties to this suit, thus the judgment debtor and therefore the ongoing attachment and sale is legal.
This court further finds that the ruling and orders of the court dated 7th November 2025 cannot be set aside without an application for review and that the grounds of the application cannot be failure to consider the submissions as the same are not evidence but amount to a legal opinion.
The decision of the court can only be reviewed under Section 80 of the Civil Procedure Act, and Order 45 of the Civil Procedure Rules 2010. Section 80 of the Civil Procedure Act states as follows;
“80. Any person who considers himself aggrieved—
(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is allowed by this Act,
may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
Order 45 of the Civil Procedure Rules 2010 also states thus;-
“45. 1(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, or
(b) by a decree or order from which no appeal is hereby allowed
And who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reasons, desires to obtain a review of the decree or order may apply for a review of judgment to the court which pass the decree or made the order without unreasonable delay”
The above provisions circumscribe the jurisdiction of the Court in an application for review. The conditions in Order 45 of the Civil Procedure Rules 2010 have to be satisfied although within a much wider approach expressed in constitutional desire in Article 159 of the Constitution and the overriding objective in sections 1A and 1B Civil Procedure Act to serve substantive justice.
in Kithoi v Kioko (1982) KLR 177, page 181, by the Court of Appeal that;
“……….the Civil Procedure Rules Order XLIV demands inter alia, that an application for review must be based in the discovery of new and important evidence which was not within the applicant’s knowledge or could not be produced by him at the time when the decree was passed or the order made or on account of some mistake on the face of the record or for any other sufficient reason. The application for review must strictly prove the grounds for review, except for review on the ground of mistake or error apparent on the record, falling which the application will not be granted.” (Emphasis added)
The upshot of the above is that the application is dismissed with costs.
The application before me is dated 5th March 2025. The application seeks orders that any Attachment, Sale, Transfer, or taking over of Possession of property Land Title Number Ruiru Town/261 registered in the names of Gerald Novac and Lonnie Brooks (Trustee of Baptist Bible Mission of East Africa), such Sale or Transfer being carried out by Agunja Traders Auctioneers or any other Auctioneers on 07/03/2025 or on any other date in execution of the Decree herein, be lifted, cancelled and set aside in its entirety, and the said property be reverted back to the aforesaid registered owners Gerald Novac and Lonnie Brooks. The Attachment herein, and any Orders, Warrants for Attachment and Sale of property Land Title No. Ruiru Town/261, be lifted, vacated and set aside in their entirety. The Ruling and Orders of the court herein dated 7th November 2024, be set aside and vacated, and the Decree Holders' two Notices of Motion dated 19th August 2024 and 27th September 2024 be heard afresh. Costs of this application be borne by the Decree Holder.
The application is based on grounds that the objectors are neither parties to this suit nor are they the Judgment Debtors. According to the applicants, the objectors are not liable for settlement of the Decretal sum herein, nor are they available for attachment and sale towards settlement of the Decree herein. In spite of the foregoing, the Objectors' property Land Title No. Ruiru Town/261 has been attached and advertised for sale by public auction on 7th January 2025 in of the Decree herein.
Previous Ruling/Orders adverse to the Objectors herein were delivered by the court prematurely and irregularly on 7th November 2024 greatly prejudicing the Objectors, a mistake the court has readily owned up to and apologized for the same, and granted "liberty to apply. The intended sale of the Objectors' property is being carried out unlawfully and there has been no Warrants of Attachment and Sale of the property, by the court. The court has not issued any Public Notice and Advertisement, any Settlement of Terms of Sale, as mandatorily required by law. The auctioneers have not issued to the Objectors who are the registered owners of the said property a Notification of Sale, or Redemption Notice over the same as mandatorily required by law.
The applicants lament that the lawful Time for Sale of the said property/land has not crystalized, and the intended sale of the property is premature, since the Notices and timelines prescribed by law have not been met. The entire Attachment and intended Sale of the Objectors' property is bad in law and an abuse of court process
In the supporting affidavit of Gerald Novak, he states that he is an American citizen and a Baptist Missionary residing in Kenya. He is the 2nd objector. That the objectors are Baptist Bible Missionaries of East Africa and trustees duly registered and incorporated as a juristic person. The applicants state that Lonnie Brooks the 3rd Objector Lonnie Brooks is not a trustee of Baptist Bible Mission of East Africa Registered Trustees (1st Objector), and nor is he resident in Kenya. Lonnie Brooks is an elderly retired Reverend of the Baptist Church. He is in his eighties. He lives in America. He retired as a Trustee of the 1st Objector over twenty-five years ago, and he returned to America where he has lived ever since.
Gerald Novak and Lonnie Brooks are the registered proprietors of property land Title Number Ruiru Town/261 situate in Ruiru town. They have been the registered proprietors thereof since 1986. On the property stands a church known as the Ruiru Bible Baptist Church. The property does not house any institution other than the church, contrary to some Valuation Report filed in court earlier by the Decree Holder in support of one of his many earlier applications herein. The applicant states that the supposed Valuation earlier filed by the Decree Holder herein is not of the said property Ruiru Town/261. Indeed, no Valuation has ever been carried out on the said church property Ruiru Town /261. The property Ruiru Town /261 was advertised for sale by Public Auction on 30th: January 2025 pursuant to an Order of the court in this matter but the auction did not take place. There was absolutely no auction, no bidding, and no bidders at the advertised venue of the auction. This was likely because not many people would ordinarily be keen on buying a church. The threat to the property is however still alive, as the Auctioneer could re-advertise the property for sale. The Attachment of the property has not been lifted and remains if force.
The Attachment and intended sale of the said property is pursuant to a Ruling of this court dated 07/11/2024, delivered in respect of two different applications dated 26/08/2024 and 27/09/2024 made by the Plaintiff/Decree Holder.
The Objectors herein opposed the said applications vide the Grounds of Opposition and Preliminary Objection dated 25th September 2024 and 16th October 2024. The objector’s participation in those applications was at the invitation and service of those applications upon them by the Plaintiff/Decree Holder. They participated in the said applications in a bid to stop the then intended attachment of their property. They are still entitled to object to the attachment at any time before sale of the now attached property, in line with Order 22 rule 5l of the Civil Procedure Rules.
The aforesaid Ruling dated 7th November 2024 was delivered irregularly and prematurely twenty-one (21) days before the due date of 28th November 2024, which was the date that the court had set for Ruling on the application dated 27th September 2024. The Submissions on the application dated 27th September 2024 were yet to be filed by the time the Ruling was delivered prematurely. Indeed, the timelines set by the court for the filing of the said Submissions had not yet lapsed. A reading of the said combined Ruling dated 7th November 2024 also reveals that no mention or any consideration at all was made on their Submissions dated 7th November 2024, which Submissions had been duly filed and were on the court record. Those Submissions were clearly not taken in to account.
Their Advocates’ letter dated 6th December 2024, raised the foregoing concerns with the court, regarding the premature Ruling and the subsequent misleading communication/email/s from the court to the effect that the Ruling had been rescheduled to 11th December 2024 and later to 18th December 2024, when all along the Ruling had already been delivered on 7th November 2024. Indeed, the court responded to the said letter, by way of Directions issued by the Hon. Judge on 18th December 2024, wherein the court admitted and apologized for the aforesaid irregularities, which the court attributed to "technological misinterpretations by the court". The court also gave parties 'liberty to apply", which liberty they now hereby avail themselves. They have since learnt that the property Ruiru Town/261 had been advertised for sale on 30th January 2025. The advert was placed in the Standard Newspaper on 14th January 2025. That proposed auction did not take place. The property has now been slated for sale by auction on Friday 7th March 2025.
None of these Notifications or earlier advertisements have ever been served or otherwise notified to the registered proprietors. They have only now learnt of them from a friend who the Auctioneer tried to interest to purchase the property. No Notification of Sale and no Redemption Notice of the property has ever been served upon the applicants.
Their advocates on record herein have also checked through the court file at the court registry, and in fact, no Warrants of Attachment and no Warrants of Sale of the said property are on the court record, nor have been issued court, as mandatorily required under Rule 6 and Rule 11 (a) & (b) of the Auctioneers Rules.
The applicant contend that the "Time of Sale" of the said property has not crystalized. This is because no "Public Notice has been affixed in the precincts of the court of the Judge ordering the sale", as mandatorily required under Order 22 rule 58 of the Civil Procedure Rules. They pray that the court do set aside and vacate its dated 07/11/2024, and do lift and cancel the Attachment/ intended Sale of Land Title No. Ruiru Town /261.
Respondents Responce
The respondent decree holder on his part states that the issues raised in the application and the objection were already dealt with by this court and a ruling delivered and orders granted. The applicants did not appeal against the orders granted and cannot bring this court the same issues for deliberation. The matter is Res Judicata so speak. The respondent states that it is therefore dishonest on the part of the applicants to allege that the ruling of 7th November 2024 was irregular or pre-mature as the proceedings and directions by the court were very clear.
The applicants' advocate was in court on 17th October 2024 during proceedings and that the court specifically directed the parties to prepare and file written submissions on both applications of 19th August 2024 and 219.2024. This not been denied. The attached property belongs to Baptist Bible Mission of East Africa through representation by Registered Trustees and as at this moment the registered Trustees for Ruiru Town/261 are Gerald Novak and Lonnie Brooks their ages notwithstanding and as such Trustees of Baptist Bible Mission of East Africa, the law allows any party aggrieved against the institution to sue all or any of them and so all orders against the institution are binding against all the Trustees irrespective of whether they are parties to the suit or not.
It is not true that no Notification of Sale was served upon the Respondents. That they were served on 12th November 2024 and received by a member of staff called Milka who signed. It is also not true that there was no Public Notice and Advertisement of the intended sale by public auction. The intended sale by auction has in fact been advertised twice.
The court cannot be asked to set aside the attachment as the Order of Prohibition was granted by the court against property title number Ruiru Town/261 as appears in the Official Search. Execution of the decree is more than half way complete and the applicants should not be allowed to interfere with the process unless they are offering to settle the whole decree. This objection and notice of motion are brought in bad faith and is part of continuous attempt by the applicant to defeat justice.
Gerald Novak and Lonnie Brooks are the registered proprietors of property title number Ruiru Town/261. The ownership is not in their personal capacity. They own the parcel of land in their capacity as Trustees of Baptist Bible Mission of East Africa. As such Trustees, they are parties to this suit by virtue of section 3(3) of the TRUSTEES (Perpetual Succession) Act Cap 164. The section provides that upon being granted a Certificate of Registration, "The Trustees Shall Thereupon Become a Body Corporate by the name described in the Certificate and have the power to sue and be sued in their name.
The respondent invokes Order 31 rules 1 and 2 about the liability of trustees which provides that in all suits concerning property vested in a trustee ... where there several trustees ... they shall be made parties to a suit
Against one or more of them. According to the respondents, this means that Gerald Novak and Lonnie Brooks are parties to this suit even though they were not joined in it. The allegation that Lonnie Brooks is no longer a Trustee is not backed by any evidence or proof. On the contrary, clear proof of his trusteeship is the Land Certificate availed by them.
The respondent differs with the applicant’s argument that property Ruiru Town/261 was not the suit property in this case and cannot be attached. He contends that Section 38(1) of the Civil Procedure Act grants this court power to enforce execution of a decree. It provides that subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree-holder order execution of the decree by attachment and sale or by sale without attachment of any property. He urges the court to find that the objectors/applicants are liable to the decree-holder as Ruiru Town/261 is one of the properties owned by Baptist Bible Mission of East Africa through trustees.
On whether the applicants/objectors deserve the prayer to have the property attached released from attachment the respondent contends that the objectors/applicants have not discharged the burden to prove and establish their right as individuals to property title number Ruiru Town/261.
Section 44(1) of the Civil Procedure Act clearly supports the attachment as lawful and within the definition of property liable to attachment and sale in execution of a decree. It provides that all property belonging to a judgment debtor, including property over which or over the profits of which he has a disposing power which he may exercise whether that property is held in his name or in the name of another but on his behalf, shall be liable to attachment and sale in execution of a decree".
In this application, the objectors/applicants cannot be heard to say that they hold Ruiru Town/261 on their own personal account. The court is not being called upon to establish the ownership of Ruiru Town/261 per se. The issue for the court is to determine whether the applicants/objectors are in possession of the attached property and if they are, is it on their own account or as trustees.
Although it is alleged that the objectors/applicants are ignorant about this case and have never been served or aware of its existence, the respondent has availed to the court evidence that proves otherwise. The court is invited to peruse two exhibits in the respondent's bundle of pleadings dated the 27.9.2024. The 1st exhibit is on page 26, it is a letter dated the 18.3.2021. It is written by Baptist Bible Mission of East Africa and addressed to Konosi & Company Advocates. The letter is in regard to this case and specifically states that “we instruct you to represent us in the above captioned matter. Please proceed to peruse the court file and file the necessary documents and advise us the status of the proceedings".
Among the signatories to the letter is Gerald Novak one of the applicants/objectors in this application. He also signed the letter dated 19.4.2021. Six people have signed the two letters in their capacity as Trustees of Baptist Bible Mission of East Africa. Of the six, Olaf Konnerup is one of the judgment debtors while Gerald Novak is one of the objectors. This leaves no doubt that the attachment and intended sale of property Ruiru Town/261 is perfectly within the law.
ANALYSIS AND DETERMINATION
The genesis of this application is the suit filed by George L. M Gichimo T/A Jerusaleum Gate Enterprise Holder/Respondent against James Eberhard Olaf Konnerup who were sued in their capacity as Trustees of Baptist Bible Mission of East Africa Registered Trustees. The plaintiff obtained judgment against the said James Eberrhard and Olaf Konnerup as the registered trustees of the Baptist Mission of East Africa registered trustees. These objection proceedings have been brought by Gerald Novak and Lonnie Brooks who claim that they are neither parties to the suit nor judgment debtors. The applicant have not produced the certificate of incorporation to assist the court to establish whether the trustees are a juristic person.
Trusts in Kenya are created under the Trustees Act or the Trustees (Perpetual Succession) Act (Cap.164 of the Laws of Kenya) (Act). A Trust having been established by way of a Trust deed ought to be stamped and then registered at the Lands Registry under the Registration of Documents Act (Chapter 285 of the Laws of Kenya). The process of registration of the Trust deed pursuant to CAP 285 establishes it as an unincorporated Trust which does not have any distinct legal personality of its own.
The implication of an unincorporated trust is that the Trust can only own property, enter into contracts or do any other thing in the name of its trustees but not in its own name, that is in the name of the Trust. An unincorporated Trust does not have a separate legal existence of its own separate from its trustees. This poses a challenge when there are a change of trustees as it happened in this case either by application of Law or under the provisions of the Trust deed, as changes are required to be individually noted on every ownership document.
The most common mistake in formation of Trusts in Kenya is not following up registration under the Trustees (Perpetual Succession) Act (Act). The Act governs the incorporation of Trusts and provides for a defined structure on operations of Trusts and Trustees duties.
The registration under the Act accords a Trust as a separate legal status and is able to own property in its own name, enter into contracts and do any other thing in its own name. The Trust would upon registration under the Act have a separate and distinct legal identity.
Section 3 (1) of the Act provides, inter-alia, that the trustees who have been appointed by any body or association established for any religious, educational, literary, scientific, social, athletic or charitable purpose or who have constituted themselves for any such purpose may apply in under the Act, for incorporation a corporate body.
Section 4 of the Act provides that upon issuance of the certificate of incorporation (under the Act) ,it shall confer and vest in the body corporate(now incorporated as a result of issuance of certificate) all movable and immovable property and any interest therein belonging to or held by any person or persons for the benefit of the trust concerned. In this case, there is no evidence that the trust was incorporated as required by Law as no certificate of incorporation was produced.
The objectors known as Baptist Bible Mission of East Africa registered trustees Gerald Novok and Lonnie Brooks were the registered trustees and the registered owners of the attached property known as Ruiru Town 261. The judgment debtors in this matter are the registered trustees James Eberhard and Olaf Konnerup who were sued in their capacity as the registered trustees of the Baptist Bible Mission of East Africa. I do find that the objectors are parties to this suit, thus the judgment debtor and therefore the ongoing attachment and sale is legal.
This court further finds that the ruling and orders of the court dated 7th November 2025 cannot be set aside without an application for review and that the grounds of the application cannot be failure to consider the submissions as the same are not evidence but amount to a legal opinion.
The decision of the court can only be reviewed under Section 80 of the Civil Procedure Act, and Order 45 of the Civil Procedure Rules 2010. Section 80 of the Civil Procedure Act states as follows;
“80. Any person who considers himself aggrieved—
(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is allowed by this Act,
may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
Order 45 of the Civil Procedure Rules 2010 also states thus;-
“45. 1(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, or
(b) by a decree or order from which no appeal is hereby allowed
And who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reasons, desires to obtain a review of the decree or order may apply for a review of judgment to the court which pass the decree or made the order without unreasonable delay”
The above provisions circumscribe the jurisdiction of the Court in an application for review. The conditions in Order 45 of the Civil Procedure Rules 2010 have to be satisfied although within a much wider approach expressed in constitutional desire in Article 159 of the Constitution and the overriding objective in sections 1A and 1B Civil Procedure Act to serve substantive justice.
in Kithoi v Kioko (1982) KLR 177, page 181, by the Court of Appeal that;
“……….the Civil Procedure Rules Order XLIV demands inter alia, that an application for review must be based in the discovery of new and important evidence which was not within the applicant’s knowledge or could not be produced by him at the time when the decree was passed or the order made or on account of some mistake on the face of the record or for any other sufficient reason. The application for review must strictly prove the grounds for review, except for review on the ground of mistake or error apparent on the record, falling which the application will not be granted.” (Emphasis added)
The upshot of the above is that the application is dismissed with costs.