(Being an appeal from the ruling of Hon B.J.Ofisi (SRM) dated 12 th May 2023)
BACKGROUND OF THE APPEAL
On 12th July 2022, the trial court issued a Decree against the 2nd Respondent/Judgement Debtor for Ksh.652,076/=. Subsequently, on 14th July 2022, the Honourable Court issued Warrants of Attachment and Sale of Movable Property, on the basis of which motor vehicle, Registration Number KCQ 245H make and model Isuzu NKR, the subject of objection proceedings and this appeal, was attached.
These events necessitated the filing of the Notice of Motion dated 30 th March 2023, through which the Appellant sought to raise the attachment on the basis that it held a lawful and equitable interest in the said motor vehicle, having advanced a loan facility to the 2nd Respondent, which remains due and outstanding.
In response, the 1st Respondent opposed the application on the assertion that the application had been overtaken by events on account of the alleged sale of the motor vehicle. The Appellant further objected to the mode of execution, contending that no proclamation had been issued or demonstrated as required by law.
In the Ruling delivered on 12th May 2023, the Learned Magistrate upheld the 1 st Respondent’s contention that the motor vehicle had been sold and consequently found that the Appellant's application had been overtaken by events within the meaning of Order 22 Rule 51 (l) of the Civil Procedure Rules. The application was therefore dismissed for want of merit.
Aggrieved by the said ruling, the Appellant now appeals to this Court vide the Memorandum of Appeal dated 27th May 2023 and summarized as follows:
i) That the Learned Magistrate erred in law and fact by failing to appreciate that no Notice of intended execution was issued and that the procedure prescribed under Order 22 Rule 41 of the Civil Procedure Rules was not complied with, thereby rendering the attachment procedurally irregular and unlawful.
2) That the Learned Magistrate erred in law and fact by failing to appreciate and give due weigh to the Appellant's equitable and proprietary interest in the motor vehicle, which interest rendered the subject motor vehicle not attachable, in execution of a Decree against the 2 nd Respondent.
APPELLANT’S SUBMISSIONS
It was submitted that the Appellant acquired a valid and subsisting equitable and proprietary interest in the subject motor vehicle, deliberately created to restrict the Judgment Debtor's ability to deal with the asset, pending full payment of the loan facility.
Further that if the Judgment Debtor could not lawfully sell, transfer or otherwise deal with the subject motor vehicle for his own benefit and without the Appellant's consent, then it did not possess disposing power.
The appellant submitted that execution can only issue against the interest actually held by A judgement debtor and not against the proprietary or equitable interests of Third Parties.
The appellant’s case is that there was no proof whatsoever, despite the Appellants prompts, that the Subject motor vehicle had been sold. That in the absence of such proof, the finding that the Application had been overtaken by events was erroneous and the impugned Ruling cannot stand.
The Appellant further submitted that the entire execution process was void ab initio as no proclamation of attachment as mandatorily required was produced or demonstrated before the trial court.
1 st RESPONDENT’S SUBMISSIONS
The 1 st respondent submitted that there was evidence that warrants of attachment and sale of the subject motor vehicle had been issued to enforce a decree of the court. That the sale of the motor vehicle fundamentally changed the legal landscape. The respondent further submitted that judicial remedies should not issue where they serve no useful purpose or where they have been overtaken by events
DETERMINATION
This appeal turns on the issue whether the objection proceedings before the trial court were overtaken by events thereby rendering the same incompetent under order 22 Rule 51 of the Civil procedure Code.
This being a first appeal, I have a duty to reevaluate and reanalyse the record before the trial court and independently reach my own conclusions without overlooking the findings of the trial court particularly on matters of fact. See the case of Selle and Another v Associated Motor Boat Co Ltd (1968) EA 123.
I have carefully considered the material which was placed before the trial court through affidavits evidence and the record. The deponent who swore an affidavit in opposing the application stated on oath that the subject motor vehicle had been attached a year before the objection application was filed. He added further that the same had been sold. If the appellant contested the averment made on oath, regarding sale of the motor vehicle, nothing would have been easier than to either place before court evidence to the contrary or seek to cross examine the deponent on the contents of the affidavit.
The trial magistrate as a trier of facts considered the evidence and came to the conclusion that the objection proceedings were made late in the day as the subject motor vehicle had been sold.
Order 22 Rule 51 of the Civil Procedure Rules provide a mechanism through which an objector may challenge attachment and sale of property where they have a legal or equitable interest. It states as follows;
Order 22 rule 51
‘’1) Any person claiming to be entitled to or to have a legal or equitable interest in the whole of or part of any property attached in execution of a decree may at any time prior to payment out of the proceeds of sale of such property give notice in writing to the court and to all the parties and to the decree-holder of his objection to the attachment of such property.
2) Such notice shall be accompanied by an application supported by affidavit and shall set out in brief the nature of the claim which such objector or person makes to the whole or portion of the property attached.
3) Such notice of objection and application shall be served within seven days from the date of filing on all the parties.’’
A reading of the above rule reveals that it is predicated on the continued existence of the attached property in question before it passes hands to a third party before adjudication. Where the property is no longer part of the execution proceedings, it is my considered finding that the objection cannot be sustained. Once a sale is complete, rights may have accrued not only to the decree holder but also third parties who may be the purchasers. Such third parties are not part of the objection proceedings and any decision made will obviously affect their interest, albeit without according them a chance to be heard. An objector has a recourse during the execution proceedings to seek stay of execution pending determination of objection proceedings. This is the import of Order 22 rule,52 of the Civil Procedure Code. It appears that there was no stay of execution in the matter before the lower court and nothing would have stopped the sale.
The other issues raised by the appellant including whether a proclamation was issued before attachment were not the subject of the objection application before the trial court. The issue before the trial court was whether the objection proceedings could be sustained in light of the revelation that the subject motor vehicle had been sold.
The upshot of the above analysis is that the appeal is without merit as I have no reason to disturb the finding of the lower court. The appeal is dismissed with no order as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8 th JULY 2026
D.O. ONYANGO
JUDGE
2
BACKGROUND OF THE APPEAL
On 12th July 2022, the trial court issued a Decree against the 2nd Respondent/Judgement Debtor for Ksh.652,076/=. Subsequently, on 14th July 2022, the Honourable Court issued Warrants of Attachment and Sale of Movable Property, on the basis of which motor vehicle, Registration Number KCQ 245H make and model Isuzu NKR, the subject of objection proceedings and this appeal, was attached.
These events necessitated the filing of the Notice of Motion dated 30 th March 2023, through which the Appellant sought to raise the attachment on the basis that it held a lawful and equitable interest in the said motor vehicle, having advanced a loan facility to the 2nd Respondent, which remains due and outstanding.
In response, the 1st Respondent opposed the application on the assertion that the application had been overtaken by events on account of the alleged sale of the motor vehicle. The Appellant further objected to the mode of execution, contending that no proclamation had been issued or demonstrated as required by law.
In the Ruling delivered on 12th May 2023, the Learned Magistrate upheld the 1 st Respondent’s contention that the motor vehicle had been sold and consequently found that the Appellant's application had been overtaken by events within the meaning of Order 22 Rule 51 (l) of the Civil Procedure Rules. The application was therefore dismissed for want of merit.
Aggrieved by the said ruling, the Appellant now appeals to this Court vide the Memorandum of Appeal dated 27th May 2023 and summarized as follows:
i) That the Learned Magistrate erred in law and fact by failing to appreciate that no Notice of intended execution was issued and that the procedure prescribed under Order 22 Rule 41 of the Civil Procedure Rules was not complied with, thereby rendering the attachment procedurally irregular and unlawful.
2) That the Learned Magistrate erred in law and fact by failing to appreciate and give due weigh to the Appellant's equitable and proprietary interest in the motor vehicle, which interest rendered the subject motor vehicle not attachable, in execution of a Decree against the 2 nd Respondent.
APPELLANT’S SUBMISSIONS
It was submitted that the Appellant acquired a valid and subsisting equitable and proprietary interest in the subject motor vehicle, deliberately created to restrict the Judgment Debtor's ability to deal with the asset, pending full payment of the loan facility.
Further that if the Judgment Debtor could not lawfully sell, transfer or otherwise deal with the subject motor vehicle for his own benefit and without the Appellant's consent, then it did not possess disposing power.
The appellant submitted that execution can only issue against the interest actually held by A judgement debtor and not against the proprietary or equitable interests of Third Parties.
The appellant’s case is that there was no proof whatsoever, despite the Appellants prompts, that the Subject motor vehicle had been sold. That in the absence of such proof, the finding that the Application had been overtaken by events was erroneous and the impugned Ruling cannot stand.
The Appellant further submitted that the entire execution process was void ab initio as no proclamation of attachment as mandatorily required was produced or demonstrated before the trial court.
1 st RESPONDENT’S SUBMISSIONS
The 1 st respondent submitted that there was evidence that warrants of attachment and sale of the subject motor vehicle had been issued to enforce a decree of the court. That the sale of the motor vehicle fundamentally changed the legal landscape. The respondent further submitted that judicial remedies should not issue where they serve no useful purpose or where they have been overtaken by events
DETERMINATION
This appeal turns on the issue whether the objection proceedings before the trial court were overtaken by events thereby rendering the same incompetent under order 22 Rule 51 of the Civil procedure Code.
This being a first appeal, I have a duty to reevaluate and reanalyse the record before the trial court and independently reach my own conclusions without overlooking the findings of the trial court particularly on matters of fact. See the case of Selle and Another v Associated Motor Boat Co Ltd (1968) EA 123.
I have carefully considered the material which was placed before the trial court through affidavits evidence and the record. The deponent who swore an affidavit in opposing the application stated on oath that the subject motor vehicle had been attached a year before the objection application was filed. He added further that the same had been sold. If the appellant contested the averment made on oath, regarding sale of the motor vehicle, nothing would have been easier than to either place before court evidence to the contrary or seek to cross examine the deponent on the contents of the affidavit.
The trial magistrate as a trier of facts considered the evidence and came to the conclusion that the objection proceedings were made late in the day as the subject motor vehicle had been sold.
Order 22 Rule 51 of the Civil Procedure Rules provide a mechanism through which an objector may challenge attachment and sale of property where they have a legal or equitable interest. It states as follows;
Order 22 rule 51
‘’1) Any person claiming to be entitled to or to have a legal or equitable interest in the whole of or part of any property attached in execution of a decree may at any time prior to payment out of the proceeds of sale of such property give notice in writing to the court and to all the parties and to the decree-holder of his objection to the attachment of such property.
2) Such notice shall be accompanied by an application supported by affidavit and shall set out in brief the nature of the claim which such objector or person makes to the whole or portion of the property attached.
3) Such notice of objection and application shall be served within seven days from the date of filing on all the parties.’’
A reading of the above rule reveals that it is predicated on the continued existence of the attached property in question before it passes hands to a third party before adjudication. Where the property is no longer part of the execution proceedings, it is my considered finding that the objection cannot be sustained. Once a sale is complete, rights may have accrued not only to the decree holder but also third parties who may be the purchasers. Such third parties are not part of the objection proceedings and any decision made will obviously affect their interest, albeit without according them a chance to be heard. An objector has a recourse during the execution proceedings to seek stay of execution pending determination of objection proceedings. This is the import of Order 22 rule,52 of the Civil Procedure Code. It appears that there was no stay of execution in the matter before the lower court and nothing would have stopped the sale.
The other issues raised by the appellant including whether a proclamation was issued before attachment were not the subject of the objection application before the trial court. The issue before the trial court was whether the objection proceedings could be sustained in light of the revelation that the subject motor vehicle had been sold.
The upshot of the above analysis is that the appeal is without merit as I have no reason to disturb the finding of the lower court. The appeal is dismissed with no order as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8 th JULY 2026
D.O. ONYANGO
JUDGE
2