Introduction
1. The applicant filed the motion dated 15th March 2024 in which it sought for interim injunctive reliefs in rem to restrain any auctioneer or any other person from attaching particularised items the plaintiff claimed to be tools of trade which are protected from attachment in execution of decrees and or orders under Section 44(1) of the Civil Procedure Act. The applicant further sought to have the court recall the warrants of sale and attachment issued herein for cancellation for having been issued irregularly.
2. The application was grounded on the grounds therein as well as the applicant’s supporting affidavit date 15.3.2024.
3. It is the applicant’s case that she operates a hotel business in the name and style of Classic Guest House and that on the 12.3.2024 the respondent proceeded to proclaim her tools of trade as particularised in the instant motion.
4. The applicant further averred that the decree herein was more than one year while the warrants were taken out on 6.3.2024 without first taking out a notice to show cause as required by law; that the warrants had arithmetical error that did not conform with the decree or judgement of th court; that the warrants were an abuse of the court process as the respondent had not sent the draft decree to the parties for approval or comments as required by law and that unless the respondent’s proclamation was stayed, the applicant was bound to suffer loss and damage.
5. In response, the respondent through one Mary Juma filed a replying affidavit dated 21.3.2024 in which she deposed that the instant application as an abuse of the court process that sought to deny the respondent the fruits of the judgement.
6. It was deposed that the judgement herein was entered against the applicant on the 17.1.2023, that the applicant filed an application for stay of execution dated 13.2.2023 which was conditionally granted on the 1.3.2023 for 60 days which expired on 1.5.2023 whereas the application for execution was filed less than a year after this court ordered execution on the 5.2.2024 as envisaged in the Order 22 Rule 18 (1) of the CPR and as such the respondent was within their right to proceed with execution.
7. The parties filed submissions to canvass the instant application.
Applicant’s Submissions
8. The applicant conceded to the fact that the decree was not more than a year old as claimed in her application.
9. It was submitted that the applicant sought to protect her legal interest as anchored on section 44 (1) of the CPR that protects tools of trade in execution of decrees as proclaimed by the respondent herein which the respondent had not controverted the utility of these items as tools of trade. The applicant relied on the case of Bora Capital Limited vs. Jane Njeri Munyi [2018] eKLR, Jonathan Wepukhulu t/a Gati Cleaning Agency Limited vs. Julius Odhiambo Oduor [2019] eKLR and Victoria Pumps Limited vs. Kenya Ports Authority & 4 Others [2015] eKLR.
10. The applicant submitted that the proclaimed items were, as a matter of public notoriety, installed in a hotel for no other purposes but to facilitate essential work of the hotel employees and clients in the course of business hence tools of trade and their continued attachment exposes the applicant to insolvency as she would be unable to carry out her core mandate and/or business to generate any or sufficient revenue to meet her obligations.
Respondent’s Submissions
11. The respondent submitted that the applicant conceded to the fact that the decree was not more than a year old as claimed in her application.
12. It was further submitted that section 44 (1) does not apply to businesses and corporates such as the applicant but rather to artisans whose livelihoods depend on their workmanship as was held in the cases of Invesco Assurance Co. Limited v Kinyanjui & Co. Advocates 7 Another and that of Blackwood Hodge (Kenya) Ltd v Lead Gasoline Tank Cleaning Sam and Chase (K) LTD [1986] KLR 749.
13. It was submitted that the respondent be allowed to execute the orders previously made by dismissing the current application.
Analysis & Determination
14. I have considered the application herein, the replying affidavit by the respondent as well as the parties’ respective submissions. The applicant’s case is that she is protected by section 44 of the Civil Procedure Act whereas the respondent’s case is that the section affords protection to natural and not artificial persons.
15. According to the Applicant, the continued attachment of its tools of trade exposes it to the irreparable danger of insolvency as it will be unable to carry out its core mandate and/or business to generate any or sufficient revenue to meet its obligations as they fall due.
16. The matter before me is brought under section 44(1) of the Civil Procedure Act which provides as hereunder:
(1) 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 for his own benefit, 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:
Provided that the following shall not be liable to attachment or sale—
(i) the necessary wearing apparel, cooking vessels, beds and bedding of the judgment-debtor and of his wife and children, and those personal ornaments from which, in accordance with religious usage, a woman cannot be parted;
(ii) the tools and implements of a person necessary for the performance by him of his trade or profession;
(iii) where the judgment-debtor is an agriculturalist—
(a) the first ten thousand shillings in value of his livestock, if any; and
(b) the first five thousand shillings in value of all implements, tools, utensils, plant and machinery used in connection with stock or dairy farming or in the production of crops or plants; and
(c) the first one thousand shillings in value of agricultural produce necessary to enable him to earn his livelihood;
(iv) books of accounts;
(v) a right to sue in damages;
(vi) a right of personal service;
(vii) stipends and gratuities allowed to pensioners of the Government, or payable out of a service family pension fund notified in the Gazette by the Minister, and political pensions;
(viii) two thirds of the salary of public officer or other person in employment;
(ix) a contingent or possible right or interest, including an expectancy of succession by survivorship;
(x) a right of future maintenance;
(xi) any fund or allowance declared by law to be exempt from attachment and sale in execution of a decree.
[Emphasis added]
17. On the other hand, Order 22 Rule 51 of the CPR mandates the court to investigate any contentious matter regarding execution and make a finding thereon.
18. From the record, the applicant trades a business specifically, Classic Guest House. The Respondent contends that in those circumstances, the applicant cannot rely on section 44(1) in order to successfully argue that the properties proclaimed were exempt from execution.
19. The said issue was the subject of the decision rendered by Bosire, J (as he then was) in Blackwood Hodge (Kenya) Ltd vs. Lead Gasoline Tank Cleaning Sam and Chase (K) Ltd [1986] KLR 749 where he held that:
“The debt having been pending for a very long time, the conduct of the applicant in failing to make any payment in settlement of it had been such as would not persuade the court to come to its aid…Section 44 of the Civil Procedure Act is intended to protect, not corporate entities but artisans whose livelihood depends on their workmanship. The section reads “the tools and implements of a person for the performance by him of his trade or profession”. “Person” as used in the subsection does not include a corporate body. This section did not protect the applicant…There was a high probability that if the attached property was released, it may be attached in satisfaction of the applicant’s other debts.”
20. The said decision was cited with approval in the case of Master Fabricators Limited vs. Patrick Omondi Ndonga [2014] eKLR.
21. I associate myself with the said holding as expressing the correct law as regards the intention of the said section. In the premises the applicant herein cannot successfully invoke in its aid the said provision in order to bar the Respondent from realizing the fruits of its judgement. It is my view that the said section must be restrictively interpreted so as to aid only those whose means of livelihood and sustenance are in jeopardy of being ruined. It ought not to be invoked to simply protect those whose profits and businesses are in jeopardy. The exemption, in my view, is not meant for the protection of a particular industry but is only meant to protect a particular person’s ability to earn livelihood.
22. My decision is reinforced by the reasoning behind the decision of Webber, J in Voi Posho Mill vs. Kenya Sisal [1962] EA 647 where he expressed himself as hereunder:
“Section 44 of the Civil Procedure Ordinance describes what property is liable to attachment and sale in execution of a decree…The words “necessary to enable him to earn his livelihood” clearly govern agricultural implements as well as agricultural produce and the proviso is designed, not to protect agricultural production generally, but the agriculturalist, to ensure that his livestock and implements are not seized, therefore depriving him of the means to earn his living. However, the court does not consider that the term agriculturist can be extended to a person merely because his sole income is derived from agriculture and in addition to this his occupation as well as chief source of livelihood must be with the cultivation of land, or production of crops or the raising of stock.”
23. The Applicant submits that it is a matter of public notoriety that the proclaimed items are primary installed in the hotel for no other purpose but to facilitate its essential work. In my view, if this is the criteria to be applied, nothing stops motor vehicles which are meant to enable the insurance company’s staff to source for business falling also under the category of tools of trade.
24. In a business offering lodging business such as in the instant case, the only properties of the business may be Tvs, tables, chairs, bed and mattresses which if exempt would render execution against such an entity a dead letter of the law. I therefore agree with the position adopted by Sergon, J in Bora Capital Limited vs. Jane Njeri Munyi [2018] eKLR for the observation that:
“On the first ground, the appellant is of the submission that the property attached were its tools of trade which tools are exempted from attachment under Section 44(1) of the Civil Procedure Act. The appellant pointed out that the appellant is in business and is primarily engaged as real estate agents, developers and valuers. It is stated that in the process of execution the appellant’s assets including chairs, tables, officer counter, metal cabinets, computers and a printer were proclaimed. The respondent on the other hand is of the submission that the trial magistrate arrived at the correct decision in finding the attached property not tools of trade. In his ruling, the learned magistrate ruled that the proclaimed goods were office furniture and not tools of trade hence the proclamation was valid. With respect, I do not think the findings of the trial magistrate can be faulted, consequently this ground is found to be unmeritorious.”
25. Therefore, not every item that is required by an entity to undertake its operations falls under the definition of tools and implements of a person necessary for the performance by him of his trade or profession. It was therefore noted, and rightly in my view, in Francis Kamau Njoroge & Another vs. James Mbire Ngaita & 4 Others [2016] eKLR that:
“The above goods are basically office furniture. Under Section 44(1) of the Civil Procedure Act, the properties of a judgement debtor which not liable for attachment or sale are specified. The provision relevant to this case is Section 44(7) (ii) in which it is expressly stated that the tools and implements of a person necessary for the performance by him of his trade or profession shall not be liable to attachment or sale. The defendants are advocates of this court. In my humble view, I do not think furniture can be regarded as the tools of trade or profession of the defendants.”
26. Interrogating the authorities relied on by the applicant, it is worth noting that the ruling in Victoria Pumps Limited vs. Kenya Ports Authority & 4 Others [2015] eKLR focused on establishing the existence of a prima facie case, meaning it does not represent the final word on what constitutes tools of trade. Similarly, the case of Jonathan Wepukhuli t/a Gati Cleaning Agency Limited vs. Julius Odhiambo Oduor [2019] eKLR dealt with a request for a stay pending appeal. The Court\'s role in such matters is to determine if the appeal in question is viable and not frivolous. As a result, a decision made in this context is not necessarily conclusive unless upheld on appeal.
27. Accordingly, I find no merit in this application which I hereby dismiss with costs assessed at ksh 25000.
28. This file is marked as closed.
Delivered, signed and dated at Kisumu this 30th day of September 2024
1. The applicant filed the motion dated 15th March 2024 in which it sought for interim injunctive reliefs in rem to restrain any auctioneer or any other person from attaching particularised items the plaintiff claimed to be tools of trade which are protected from attachment in execution of decrees and or orders under Section 44(1) of the Civil Procedure Act. The applicant further sought to have the court recall the warrants of sale and attachment issued herein for cancellation for having been issued irregularly.
2. The application was grounded on the grounds therein as well as the applicant’s supporting affidavit date 15.3.2024.
3. It is the applicant’s case that she operates a hotel business in the name and style of Classic Guest House and that on the 12.3.2024 the respondent proceeded to proclaim her tools of trade as particularised in the instant motion.
4. The applicant further averred that the decree herein was more than one year while the warrants were taken out on 6.3.2024 without first taking out a notice to show cause as required by law; that the warrants had arithmetical error that did not conform with the decree or judgement of th court; that the warrants were an abuse of the court process as the respondent had not sent the draft decree to the parties for approval or comments as required by law and that unless the respondent’s proclamation was stayed, the applicant was bound to suffer loss and damage.
5. In response, the respondent through one Mary Juma filed a replying affidavit dated 21.3.2024 in which she deposed that the instant application as an abuse of the court process that sought to deny the respondent the fruits of the judgement.
6. It was deposed that the judgement herein was entered against the applicant on the 17.1.2023, that the applicant filed an application for stay of execution dated 13.2.2023 which was conditionally granted on the 1.3.2023 for 60 days which expired on 1.5.2023 whereas the application for execution was filed less than a year after this court ordered execution on the 5.2.2024 as envisaged in the Order 22 Rule 18 (1) of the CPR and as such the respondent was within their right to proceed with execution.
7. The parties filed submissions to canvass the instant application.
Applicant’s Submissions
8. The applicant conceded to the fact that the decree was not more than a year old as claimed in her application.
9. It was submitted that the applicant sought to protect her legal interest as anchored on section 44 (1) of the CPR that protects tools of trade in execution of decrees as proclaimed by the respondent herein which the respondent had not controverted the utility of these items as tools of trade. The applicant relied on the case of Bora Capital Limited vs. Jane Njeri Munyi [2018] eKLR, Jonathan Wepukhulu t/a Gati Cleaning Agency Limited vs. Julius Odhiambo Oduor [2019] eKLR and Victoria Pumps Limited vs. Kenya Ports Authority & 4 Others [2015] eKLR.
10. The applicant submitted that the proclaimed items were, as a matter of public notoriety, installed in a hotel for no other purposes but to facilitate essential work of the hotel employees and clients in the course of business hence tools of trade and their continued attachment exposes the applicant to insolvency as she would be unable to carry out her core mandate and/or business to generate any or sufficient revenue to meet her obligations.
Respondent’s Submissions
11. The respondent submitted that the applicant conceded to the fact that the decree was not more than a year old as claimed in her application.
12. It was further submitted that section 44 (1) does not apply to businesses and corporates such as the applicant but rather to artisans whose livelihoods depend on their workmanship as was held in the cases of Invesco Assurance Co. Limited v Kinyanjui & Co. Advocates 7 Another and that of Blackwood Hodge (Kenya) Ltd v Lead Gasoline Tank Cleaning Sam and Chase (K) LTD [1986] KLR 749.
13. It was submitted that the respondent be allowed to execute the orders previously made by dismissing the current application.
Analysis & Determination
14. I have considered the application herein, the replying affidavit by the respondent as well as the parties’ respective submissions. The applicant’s case is that she is protected by section 44 of the Civil Procedure Act whereas the respondent’s case is that the section affords protection to natural and not artificial persons.
15. According to the Applicant, the continued attachment of its tools of trade exposes it to the irreparable danger of insolvency as it will be unable to carry out its core mandate and/or business to generate any or sufficient revenue to meet its obligations as they fall due.
16. The matter before me is brought under section 44(1) of the Civil Procedure Act which provides as hereunder:
(1) 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 for his own benefit, 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:
Provided that the following shall not be liable to attachment or sale—
(i) the necessary wearing apparel, cooking vessels, beds and bedding of the judgment-debtor and of his wife and children, and those personal ornaments from which, in accordance with religious usage, a woman cannot be parted;
(ii) the tools and implements of a person necessary for the performance by him of his trade or profession;
(iii) where the judgment-debtor is an agriculturalist—
(a) the first ten thousand shillings in value of his livestock, if any; and
(b) the first five thousand shillings in value of all implements, tools, utensils, plant and machinery used in connection with stock or dairy farming or in the production of crops or plants; and
(c) the first one thousand shillings in value of agricultural produce necessary to enable him to earn his livelihood;
(iv) books of accounts;
(v) a right to sue in damages;
(vi) a right of personal service;
(vii) stipends and gratuities allowed to pensioners of the Government, or payable out of a service family pension fund notified in the Gazette by the Minister, and political pensions;
(viii) two thirds of the salary of public officer or other person in employment;
(ix) a contingent or possible right or interest, including an expectancy of succession by survivorship;
(x) a right of future maintenance;
(xi) any fund or allowance declared by law to be exempt from attachment and sale in execution of a decree.
[Emphasis added]
17. On the other hand, Order 22 Rule 51 of the CPR mandates the court to investigate any contentious matter regarding execution and make a finding thereon.
18. From the record, the applicant trades a business specifically, Classic Guest House. The Respondent contends that in those circumstances, the applicant cannot rely on section 44(1) in order to successfully argue that the properties proclaimed were exempt from execution.
19. The said issue was the subject of the decision rendered by Bosire, J (as he then was) in Blackwood Hodge (Kenya) Ltd vs. Lead Gasoline Tank Cleaning Sam and Chase (K) Ltd [1986] KLR 749 where he held that:
“The debt having been pending for a very long time, the conduct of the applicant in failing to make any payment in settlement of it had been such as would not persuade the court to come to its aid…Section 44 of the Civil Procedure Act is intended to protect, not corporate entities but artisans whose livelihood depends on their workmanship. The section reads “the tools and implements of a person for the performance by him of his trade or profession”. “Person” as used in the subsection does not include a corporate body. This section did not protect the applicant…There was a high probability that if the attached property was released, it may be attached in satisfaction of the applicant’s other debts.”
20. The said decision was cited with approval in the case of Master Fabricators Limited vs. Patrick Omondi Ndonga [2014] eKLR.
21. I associate myself with the said holding as expressing the correct law as regards the intention of the said section. In the premises the applicant herein cannot successfully invoke in its aid the said provision in order to bar the Respondent from realizing the fruits of its judgement. It is my view that the said section must be restrictively interpreted so as to aid only those whose means of livelihood and sustenance are in jeopardy of being ruined. It ought not to be invoked to simply protect those whose profits and businesses are in jeopardy. The exemption, in my view, is not meant for the protection of a particular industry but is only meant to protect a particular person’s ability to earn livelihood.
22. My decision is reinforced by the reasoning behind the decision of Webber, J in Voi Posho Mill vs. Kenya Sisal [1962] EA 647 where he expressed himself as hereunder:
“Section 44 of the Civil Procedure Ordinance describes what property is liable to attachment and sale in execution of a decree…The words “necessary to enable him to earn his livelihood” clearly govern agricultural implements as well as agricultural produce and the proviso is designed, not to protect agricultural production generally, but the agriculturalist, to ensure that his livestock and implements are not seized, therefore depriving him of the means to earn his living. However, the court does not consider that the term agriculturist can be extended to a person merely because his sole income is derived from agriculture and in addition to this his occupation as well as chief source of livelihood must be with the cultivation of land, or production of crops or the raising of stock.”
23. The Applicant submits that it is a matter of public notoriety that the proclaimed items are primary installed in the hotel for no other purpose but to facilitate its essential work. In my view, if this is the criteria to be applied, nothing stops motor vehicles which are meant to enable the insurance company’s staff to source for business falling also under the category of tools of trade.
24. In a business offering lodging business such as in the instant case, the only properties of the business may be Tvs, tables, chairs, bed and mattresses which if exempt would render execution against such an entity a dead letter of the law. I therefore agree with the position adopted by Sergon, J in Bora Capital Limited vs. Jane Njeri Munyi [2018] eKLR for the observation that:
“On the first ground, the appellant is of the submission that the property attached were its tools of trade which tools are exempted from attachment under Section 44(1) of the Civil Procedure Act. The appellant pointed out that the appellant is in business and is primarily engaged as real estate agents, developers and valuers. It is stated that in the process of execution the appellant’s assets including chairs, tables, officer counter, metal cabinets, computers and a printer were proclaimed. The respondent on the other hand is of the submission that the trial magistrate arrived at the correct decision in finding the attached property not tools of trade. In his ruling, the learned magistrate ruled that the proclaimed goods were office furniture and not tools of trade hence the proclamation was valid. With respect, I do not think the findings of the trial magistrate can be faulted, consequently this ground is found to be unmeritorious.”
25. Therefore, not every item that is required by an entity to undertake its operations falls under the definition of tools and implements of a person necessary for the performance by him of his trade or profession. It was therefore noted, and rightly in my view, in Francis Kamau Njoroge & Another vs. James Mbire Ngaita & 4 Others [2016] eKLR that:
“The above goods are basically office furniture. Under Section 44(1) of the Civil Procedure Act, the properties of a judgement debtor which not liable for attachment or sale are specified. The provision relevant to this case is Section 44(7) (ii) in which it is expressly stated that the tools and implements of a person necessary for the performance by him of his trade or profession shall not be liable to attachment or sale. The defendants are advocates of this court. In my humble view, I do not think furniture can be regarded as the tools of trade or profession of the defendants.”
26. Interrogating the authorities relied on by the applicant, it is worth noting that the ruling in Victoria Pumps Limited vs. Kenya Ports Authority & 4 Others [2015] eKLR focused on establishing the existence of a prima facie case, meaning it does not represent the final word on what constitutes tools of trade. Similarly, the case of Jonathan Wepukhuli t/a Gati Cleaning Agency Limited vs. Julius Odhiambo Oduor [2019] eKLR dealt with a request for a stay pending appeal. The Court\'s role in such matters is to determine if the appeal in question is viable and not frivolous. As a result, a decision made in this context is not necessarily conclusive unless upheld on appeal.
27. Accordingly, I find no merit in this application which I hereby dismiss with costs assessed at ksh 25000.
28. This file is marked as closed.
Delivered, signed and dated at Kisumu this 30th day of September 2024