BRIEF FACTS
This ruling is in respect of two applications. The first application is dated 19th August, 2024 seeking the following orders:
1. Spent.
2. The court be pleased to approve and grant orders for sale by public auction of property title number RUIRU TOWN 261 measuring approximately 0.5938 ha belonging to Gerald Novoc and Lonnie Brooks who hold it in their capacity as Trustees of Baptist Bible Mission of East Africa.
3. The Respondents do pay the costs of this application.
The Application was based on grounds set out and supported by the Affidavit of GEORGE L.M GICHIMO the Applicant/Decree Holder herein sworn on 19th August, 2024. It was stated that the decree was granted on 8th May, 2023 after which the Respondents/Judgment Debtors filed a notice of appeal and instituted Civil Appeal No. E171 of 2023. That the Respondents also filed an application for stay of execution in this court as well as the Court of Appeal where they were granted conditional stay. He stated that Respondents did not honour the terms of the conditional stay and the orders lapsed.
That the Applicant’s advocates commenced execution of the decree where they attached and sold by public auction the Respondent’s motor vehicle. He stated that in order to realize the decree in full, his advocates did a search on Ruiru Town 261 which confirmed that the same was registered in the names of Gerald Novoc and Lonnie Brooks as trustees of the Respondent. He added from the Respondent’s certificate of incorporation the trustees held different properties.
It was further stated that the decretal sum for execution was Kshs.13,823,147/= and that due credit would be given to the Respondents in the sum of Kshs. 1,000,000/= realized from the sale of the motor vehicle.
Response
The Respondent filed their grounds of opposition and preliminary objection dated 25th September, 2024 on the following grounds:
1. The said application is bad in law, fatally incompetent, unsustainable, does not lie, and is an abuse of court process.
2. The Objectors are not and have never been parties or Judgment Debtors in this suit, and Execution of the Decree herein can hence not issue against them or their properties. The Decree herein does not in any way relate to or bind them.
3. The 1st Objector Baptist Bible Mission of East Africa Registered Trustees, as a corporate body legally incorporated under the laws of Kenya, is a juristic person in its own right, capable of suing and of being sued in its own corporate name, and it cannot be sued or legally bound through or in the name of any other person.
4. The immoveable property sought to be attached admittedly (by the Plaintiff) does not belong to the Defendants/Judgment Debtors herein.
The Applicant also filed an application dated 27th September, 2024 seeking the following orders:
a) Spent.
b) Spent.
c) The court be pleased to grant a temporary conservatory order and/or prohibition order against all dealings and/or transactions on property known as RUIRU TOWNSHIP/261 pending the hearing and determination of the execution proceedings herein dated 19th August, 2024 against the property title number Ruiru Township/261.
d) The costs of this application be provided for.
The Application was based on grounds set out and supported by the Affidavit of GEORGE L.M GICHIMO the Applicant/Decree Holder herein sworn on 27th September, 2024. It was stated that before the Applicant filed the present suit, he had registered a caution on Nakuru Municipality Block 20/288 which was the subject of the suit. That the Respondents before finalization of the suit had the caution vacated without his knowledge and it was transferred to another entity Limuru Road Estate Developers Ltd. He stated that he filed an application to preserve the property after which pending judgment and upon agreement by both parties the said application was abandoned.
He further stated that the Respondents filed an appeal and stay of execution which was granted on conditions but they failed to comply resulting in lapse of the stay orders. He went on to state that he executed against the Respondent’s movable properties but found that the Respondent had removed all the movable items except bus KBQ 195J which they successfully auctioned. That the proceeds of the sale of the bus was a small fraction of the decretal sum. He stated that upon search of the property Ruiru Township/261, they established that it belonged to the Respondents but held in trust by Gerald Novoc and Lonnie Brooks.
He stated that the Respondents are determined to thwart the course of justice and it would only be fair and just that conservatory/prohibitory orders are issued to preserve the property.
Submissions
The Applicant’s submissions dated 14th October, 2024 were filed by the firm of Omwenyo & Company Advocates. He submitted that the Applicant is entitled to the court’s order to attach the Respondent’s suit property. It was their submission that the search confirmed that the suit property was registered in the names of Gerald Novoc and Lonnie Brooks as trustees of the Respondent.
He argued that although the said persons are not parties to the suit, they are legally bound to satisfy the outcome of the suit by virtue of their corporate position as trustees of the Respondent. He submitted that by virtue of the letters dated 18th and 19th March, 2021, the same were signed by Olaf Konnerup a party to this suit and also Gerald Novak a trustee of the Respondent. He relied on Section 3(3) of the Trustees (Perpetual Succession) Act and submitted that that the suit property belongs to Baptist Mission of East Africa Registered Trustees, the Respondent. He further submitted it didn’t matter that the trustees registered in the title deed were not parties. He argued that they are members of the corporate body and do not hold the property as personal asset but on behalf of the trust. He further relied on Section 44(1) of the Civil Procedure Act and the case of Precase Portal Structures V Kenya Pensil Company Ltd & 2 others Nairobi HCC 969 of 1990 and submitted that property held in trust is not exempt from attachment and sale to satisfy a decree. It was his submission that the suit property having been valued at Kshs. 60,000,000/=, the excess of the decretal sum together with the auctioneer’s charges will be paid to the Respondent/Judgment Debtor. He also submitted that the court grants the Applicant/Decree Holder an order of prohibition against any dealings on the suit property pending execution process.
It was his submission that the capacity of the parties to the suit could not be raised at the execution stage. He cited Order 22 Rule 51(1) of the Civil Procedure Rules. He further submitted on the issue that the suit property did not belong to Gerald Novoc and Lonnie Brooks, the onus was on the Respondent/Judgment Debtor to prove otherwise.
Analysis and Determination
This court has considered both applications, the grounds of opposition and preliminary objection and submissions on record and is of the view that the issues for determination is as follows:
i. whether the preliminary objection is merited
ii. whether the Applicant is entitled to the orders sought.
In dealing with the first issue, in the case of Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] E.A the court held as follows:
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are on an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
It is noteworthy that the Respondent’s response as filed is titled grounds of opposition and preliminary objection. However, in line with Article 159 (2) (d) of the Constitution, I have keenly perused the document and the same only raises factual issues instead of points of law. I therefore find that the preliminary objection is without merit. In addition, the grounds as raised do not hold water since they are merely an afterthought which this court cannot interrogate at this stage of execution.
Going to the second issue, it is not in dispute that there is a decree dated 8th May, 2023 in favour of the Applicant. It is also not in dispute that the Respondent preferred an appeal and stay of execution in this court and also in the Court of Appeal where the same was granted with conditions to be fulfilled by the Respondents. It is further not in contention that the Respondents failed to abide by the terms of the conditions thus resulting in lapse of the stay orders. Section 38 of the Civil Procedure Act provides for powers of the court to enforce execution. It states as follows:
‘Subject to such conditions and limitations as may be prescribed, the Court may, on application of decree holder, order execution of the decree
(a)by delivery of any property specifically decreed,
(b)by attachment and sale, or by sale without attachment of any property,
(c)by attachment of debts,
(d)by arrest and detention in prison of any person,
(e)by appointing a receiver or
(f)in such other manner as the nature of relief granted may require.
4. It is a fact that the Applicant/Decree Holder having been granted a favourable judgment is entitled to enjoy the fruits of his judgment. This court also acknowledges the right of the Applicant/Decree Holder to enforce the decree. Consequently, I find that the application dated 19th August, 2024 is merited and is therefore allowed as prayed thus:-
(a) The court does hereby approve and grant orders for sale by public auction of property title number RUIRU TOWN 261 measuring approximately 0.5938 ha belonging to Gerald Novoc and Lonnie Brooks who hold it in their capacity as Trustees of Baptist Bible Mission of East Africa.
(b) The Respondents do pay the costs of this application.
The Applicant also sought for prohibitory orders against the suit property pending execution. Order 22 Rule 48 (1) of the Civil Procedure Rules, 2010 provides that:
“Where the property to be attached in immovable, the attachment shall be made by an order prohibiting the judgement – debtor from transferring or charging the property in any way, and all persons from taking any benefit from the purported transfer or change, and the attachment shall be complete and effective upon registration of a copy of the prohibitory order or inhibition against the title to the property.”
Having considered the circumstance of the case, this court is of the view that a prohibitory order would be necessary to preserve the property pending completion of the process of execution. It is my finding that the said order would prevent any further dealings with the subject property and allow the execution process to be finalized. The upshot is that the application dated 27th September, 2024 is allowed as prayed. Thus:-
a) The court does hereby grant a temporary conservatory order and/or prohibition order against all dealings and/or transactions on property known as RUIRU TOWNSHIP/261 pending the execution against the property title number Ruiru Township/261.
b) The costs of this application to the applicant.
Orders Accordingly.
This ruling is in respect of two applications. The first application is dated 19th August, 2024 seeking the following orders:
1. Spent.
2. The court be pleased to approve and grant orders for sale by public auction of property title number RUIRU TOWN 261 measuring approximately 0.5938 ha belonging to Gerald Novoc and Lonnie Brooks who hold it in their capacity as Trustees of Baptist Bible Mission of East Africa.
3. The Respondents do pay the costs of this application.
The Application was based on grounds set out and supported by the Affidavit of GEORGE L.M GICHIMO the Applicant/Decree Holder herein sworn on 19th August, 2024. It was stated that the decree was granted on 8th May, 2023 after which the Respondents/Judgment Debtors filed a notice of appeal and instituted Civil Appeal No. E171 of 2023. That the Respondents also filed an application for stay of execution in this court as well as the Court of Appeal where they were granted conditional stay. He stated that Respondents did not honour the terms of the conditional stay and the orders lapsed.
That the Applicant’s advocates commenced execution of the decree where they attached and sold by public auction the Respondent’s motor vehicle. He stated that in order to realize the decree in full, his advocates did a search on Ruiru Town 261 which confirmed that the same was registered in the names of Gerald Novoc and Lonnie Brooks as trustees of the Respondent. He added from the Respondent’s certificate of incorporation the trustees held different properties.
It was further stated that the decretal sum for execution was Kshs.13,823,147/= and that due credit would be given to the Respondents in the sum of Kshs. 1,000,000/= realized from the sale of the motor vehicle.
Response
The Respondent filed their grounds of opposition and preliminary objection dated 25th September, 2024 on the following grounds:
1. The said application is bad in law, fatally incompetent, unsustainable, does not lie, and is an abuse of court process.
2. The Objectors are not and have never been parties or Judgment Debtors in this suit, and Execution of the Decree herein can hence not issue against them or their properties. The Decree herein does not in any way relate to or bind them.
3. The 1st Objector Baptist Bible Mission of East Africa Registered Trustees, as a corporate body legally incorporated under the laws of Kenya, is a juristic person in its own right, capable of suing and of being sued in its own corporate name, and it cannot be sued or legally bound through or in the name of any other person.
4. The immoveable property sought to be attached admittedly (by the Plaintiff) does not belong to the Defendants/Judgment Debtors herein.
The Applicant also filed an application dated 27th September, 2024 seeking the following orders:
a) Spent.
b) Spent.
c) The court be pleased to grant a temporary conservatory order and/or prohibition order against all dealings and/or transactions on property known as RUIRU TOWNSHIP/261 pending the hearing and determination of the execution proceedings herein dated 19th August, 2024 against the property title number Ruiru Township/261.
d) The costs of this application be provided for.
The Application was based on grounds set out and supported by the Affidavit of GEORGE L.M GICHIMO the Applicant/Decree Holder herein sworn on 27th September, 2024. It was stated that before the Applicant filed the present suit, he had registered a caution on Nakuru Municipality Block 20/288 which was the subject of the suit. That the Respondents before finalization of the suit had the caution vacated without his knowledge and it was transferred to another entity Limuru Road Estate Developers Ltd. He stated that he filed an application to preserve the property after which pending judgment and upon agreement by both parties the said application was abandoned.
He further stated that the Respondents filed an appeal and stay of execution which was granted on conditions but they failed to comply resulting in lapse of the stay orders. He went on to state that he executed against the Respondent’s movable properties but found that the Respondent had removed all the movable items except bus KBQ 195J which they successfully auctioned. That the proceeds of the sale of the bus was a small fraction of the decretal sum. He stated that upon search of the property Ruiru Township/261, they established that it belonged to the Respondents but held in trust by Gerald Novoc and Lonnie Brooks.
He stated that the Respondents are determined to thwart the course of justice and it would only be fair and just that conservatory/prohibitory orders are issued to preserve the property.
Submissions
The Applicant’s submissions dated 14th October, 2024 were filed by the firm of Omwenyo & Company Advocates. He submitted that the Applicant is entitled to the court’s order to attach the Respondent’s suit property. It was their submission that the search confirmed that the suit property was registered in the names of Gerald Novoc and Lonnie Brooks as trustees of the Respondent.
He argued that although the said persons are not parties to the suit, they are legally bound to satisfy the outcome of the suit by virtue of their corporate position as trustees of the Respondent. He submitted that by virtue of the letters dated 18th and 19th March, 2021, the same were signed by Olaf Konnerup a party to this suit and also Gerald Novak a trustee of the Respondent. He relied on Section 3(3) of the Trustees (Perpetual Succession) Act and submitted that that the suit property belongs to Baptist Mission of East Africa Registered Trustees, the Respondent. He further submitted it didn’t matter that the trustees registered in the title deed were not parties. He argued that they are members of the corporate body and do not hold the property as personal asset but on behalf of the trust. He further relied on Section 44(1) of the Civil Procedure Act and the case of Precase Portal Structures V Kenya Pensil Company Ltd & 2 others Nairobi HCC 969 of 1990 and submitted that property held in trust is not exempt from attachment and sale to satisfy a decree. It was his submission that the suit property having been valued at Kshs. 60,000,000/=, the excess of the decretal sum together with the auctioneer’s charges will be paid to the Respondent/Judgment Debtor. He also submitted that the court grants the Applicant/Decree Holder an order of prohibition against any dealings on the suit property pending execution process.
It was his submission that the capacity of the parties to the suit could not be raised at the execution stage. He cited Order 22 Rule 51(1) of the Civil Procedure Rules. He further submitted on the issue that the suit property did not belong to Gerald Novoc and Lonnie Brooks, the onus was on the Respondent/Judgment Debtor to prove otherwise.
Analysis and Determination
This court has considered both applications, the grounds of opposition and preliminary objection and submissions on record and is of the view that the issues for determination is as follows:
i. whether the preliminary objection is merited
ii. whether the Applicant is entitled to the orders sought.
In dealing with the first issue, in the case of Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] E.A the court held as follows:
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are on an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
It is noteworthy that the Respondent’s response as filed is titled grounds of opposition and preliminary objection. However, in line with Article 159 (2) (d) of the Constitution, I have keenly perused the document and the same only raises factual issues instead of points of law. I therefore find that the preliminary objection is without merit. In addition, the grounds as raised do not hold water since they are merely an afterthought which this court cannot interrogate at this stage of execution.
Going to the second issue, it is not in dispute that there is a decree dated 8th May, 2023 in favour of the Applicant. It is also not in dispute that the Respondent preferred an appeal and stay of execution in this court and also in the Court of Appeal where the same was granted with conditions to be fulfilled by the Respondents. It is further not in contention that the Respondents failed to abide by the terms of the conditions thus resulting in lapse of the stay orders. Section 38 of the Civil Procedure Act provides for powers of the court to enforce execution. It states as follows:
‘Subject to such conditions and limitations as may be prescribed, the Court may, on application of decree holder, order execution of the decree
(a)by delivery of any property specifically decreed,
(b)by attachment and sale, or by sale without attachment of any property,
(c)by attachment of debts,
(d)by arrest and detention in prison of any person,
(e)by appointing a receiver or
(f)in such other manner as the nature of relief granted may require.
4. It is a fact that the Applicant/Decree Holder having been granted a favourable judgment is entitled to enjoy the fruits of his judgment. This court also acknowledges the right of the Applicant/Decree Holder to enforce the decree. Consequently, I find that the application dated 19th August, 2024 is merited and is therefore allowed as prayed thus:-
(a) The court does hereby approve and grant orders for sale by public auction of property title number RUIRU TOWN 261 measuring approximately 0.5938 ha belonging to Gerald Novoc and Lonnie Brooks who hold it in their capacity as Trustees of Baptist Bible Mission of East Africa.
(b) The Respondents do pay the costs of this application.
The Applicant also sought for prohibitory orders against the suit property pending execution. Order 22 Rule 48 (1) of the Civil Procedure Rules, 2010 provides that:
“Where the property to be attached in immovable, the attachment shall be made by an order prohibiting the judgement – debtor from transferring or charging the property in any way, and all persons from taking any benefit from the purported transfer or change, and the attachment shall be complete and effective upon registration of a copy of the prohibitory order or inhibition against the title to the property.”
Having considered the circumstance of the case, this court is of the view that a prohibitory order would be necessary to preserve the property pending completion of the process of execution. It is my finding that the said order would prevent any further dealings with the subject property and allow the execution process to be finalized. The upshot is that the application dated 27th September, 2024 is allowed as prayed. Thus:-
a) The court does hereby grant a temporary conservatory order and/or prohibition order against all dealings and/or transactions on property known as RUIRU TOWNSHIP/261 pending the execution against the property title number Ruiru Township/261.
b) The costs of this application to the applicant.
Orders Accordingly.