Ruling:
1. I have considered the Notice of motion application dated 9.10.23 together with the supporting affidavit sworn on 10th October 2023 and the Replying Affidavit sworn on 2nd November 2023, and the submission of counsel, and the relevant authorities.
2. The applicant stated that it was seeking to set aside warrants of attachment relating to certain proclaimed goods based on its beneficial interest in the said property. Counsel stated that its beneficial and or legal interests arose out of a debenture agreement dated 8th July 2019, which he stated had since crystallized into a fixed charge.
3. In opposition to the application, the respondent stated that the judgement debtor had failed to disclose relevant information to the decree holder and the court in relation to the debenture agreement over the said proclaimed items. Counsel further stated that the said agreement was never registered in favour of the applicant as is required by the law.
4. I have considered the above and looked the debenture agreement dated 8th July, 2019, I note that the same is dated prior to the date of the decree against the judgment debtor. However, looking at the said agreement, I am unable to find a list of the particular moveable assets that form the subject matter of the debenture. Given the fact that no particular items have been identified in the said agreement, it is not clear to this court that the particular assets which are the subject matter of the present application form part of that debenture.
5. While Counsel stated that the debenture agreement related to all assets of the Judgment Debtor, he could not provide a sufficient nexus between the particular assets contained in the Proclamation Notice dated 23 March, 2023 and the said debenture agreement. Nor did counsel rebut the allegation that the said debenture agreement had never registered, which is a requirement.
6. I am guided by the decision of the High Court in Stephen Kiprotich Koech v Edwin K. Barchilei; Joel Sitienei (Objector) [2019] eKLR, where the court stated that:
“The core of objection proceedings, the objector must adduce evidence to show that at the date of the attachment there was a legal or equitable interest in the property(s) attached”
7. Moreover, to my mind, the burden of proof lies on the objector to prove the above. I do not think the burden has been satisfied on a balance of probability based on the record and submissions before me.
8. Based on the reasons set out above, and for the reasons as submitted by counsel, I find that the application is without merit and the same is dismissed with costs.