Background and introduction
1. By an application dated 11th August 2025, the Objector seeks a declaration and/or pronouncement from this Honourable Court that the assorted goods and items listed at the foot of the Proclamation Notice dated 28th July 2025, issued by M/s Kenya Shield Auctioneers in execution of the Court’s Decree dated 16th May 2024, are the property of the Objector. Consequent upon the granting of this Order, the Objector further prays that this Honourable Court be pleased to discharge, vary, and/or rescind the attachment of the said assorted goods.
2. The application is opposed by way of a Replying Affidavit sworn by NIRISH CHANDULAL SHAH on 1st October 2025. I have equally carefully considered the written submissions filed by both parties.
Analysis and Determination
3. The threshold for objection proceedings is clearly set out under Order 22 Rule 51(1) of the Civil Procedure Rules, which provides:
“Any person claiming to be entitled to or to have legal or equitable interest in the whole or part of any property attached in execution of a decree may at any time prior to payment out of the proceeds of the 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’’
4. The success of an objection application therefore hinges on whether the applicant has sufficiently demonstrated the existence of a legal or equitable interest in the attached property. This principle has been consistently affirmed in judicial pronouncements. In Arun v Sharma Astana Raikundaha t/a Raikundaha & Co. Advocates & 4 others (2014) KEHC 1412 (KLR), the court emphasized that the objector must establish a recognizable interest in the property to displace the decree-holder’s claim. Similarly, in Stephen Kiprotich Koech v Edwin K. Barchilei; Joel Sitienei (Objector) [2019] eKLR, the court held:
“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. For this purpose, he may raise an objection on the ground, inter alia, that he has some beneficial interest in the property. A beneficial interest is as much an interest within the meaning of the Rules as a legal interest in the property attached.”
5. The Court of Appeal in Precast Portal Structures v Kenya Pencil Company Ltd & 2 Others [1993] eKLR laid down the seminal test on the burden of proof in objection proceedings. The Court (per Cockar JA) held:
“In objector proceedings, the objector is required to prove on a balance of probabilities that he is the owner of the attached property. The evidential burden then shifts to the decree holder to prove otherwise.
6. In the matter before me, the objector has placed before the Court a Tenancy Agreement in respect of Apartment No. 1B, situated at 33 Windchimes. The agreement is between the objector and Dew Valley, executed on 11th October 2023, with the objector as tenant and Dew Valley as landlord. In addition to the tenancy agreement, the objector has produced a statement of account evidencing consistent rent payments from October 2023 through to 18th September 2025. This documentary trail establishes, on a balance of probabilities, that at the time of the proclamation, the objector was indeed the lawful tenant of the premises.
7. The tenancy agreement and rent payment records further demonstrate that the premises were under the exclusive possession and control of the objector. Possession and control are critical indicators of legal interest in property for purposes of objection proceedings, and in this case, they weigh heavily in favor of the applicant.
8. It is further notable that the decree holder does not dispute that the attachment and proclamation were carried out within the said premises. This concession reinforces the fact that the execution process was directed at property located in a residence lawfully leased and occupied by the objector. The decree holder’s contention that the premises are the residence of the judgment debtors is not supported by evidence, and is contradicted by the tenancy agreement which unequivocally identifies the objector as the sole tenant.
9. It is therefore both logical and legally sound to conclude, on the basis of the documentary evidence presented, that the goods found within the objector’s residence are the property of the objector.
Disposition
10. Accordingly, the objection application dated 11th August 2025 succeeds. The proclamation dated 28th July 2025 and subsequent attachment of goods located at Apartment No. 1B, 33 Windchimes, are hereby set aside. The decree holder shall bear the costs of these objection proceedings.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 2nd DAY OF FEBRUARY 2025
F. MUGAMBI
JUDGE
Delivered in the presence of:
Ms Munene for the DH/respondent
Mr Odegi for the JD/plaintiff
Mr Ochola for the objector
Lilian: Court Assistant
1. By an application dated 11th August 2025, the Objector seeks a declaration and/or pronouncement from this Honourable Court that the assorted goods and items listed at the foot of the Proclamation Notice dated 28th July 2025, issued by M/s Kenya Shield Auctioneers in execution of the Court’s Decree dated 16th May 2024, are the property of the Objector. Consequent upon the granting of this Order, the Objector further prays that this Honourable Court be pleased to discharge, vary, and/or rescind the attachment of the said assorted goods.
2. The application is opposed by way of a Replying Affidavit sworn by NIRISH CHANDULAL SHAH on 1st October 2025. I have equally carefully considered the written submissions filed by both parties.
Analysis and Determination
3. The threshold for objection proceedings is clearly set out under Order 22 Rule 51(1) of the Civil Procedure Rules, which provides:
“Any person claiming to be entitled to or to have legal or equitable interest in the whole or part of any property attached in execution of a decree may at any time prior to payment out of the proceeds of the 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’’
4. The success of an objection application therefore hinges on whether the applicant has sufficiently demonstrated the existence of a legal or equitable interest in the attached property. This principle has been consistently affirmed in judicial pronouncements. In Arun v Sharma Astana Raikundaha t/a Raikundaha & Co. Advocates & 4 others (2014) KEHC 1412 (KLR), the court emphasized that the objector must establish a recognizable interest in the property to displace the decree-holder’s claim. Similarly, in Stephen Kiprotich Koech v Edwin K. Barchilei; Joel Sitienei (Objector) [2019] eKLR, the court held:
“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. For this purpose, he may raise an objection on the ground, inter alia, that he has some beneficial interest in the property. A beneficial interest is as much an interest within the meaning of the Rules as a legal interest in the property attached.”
5. The Court of Appeal in Precast Portal Structures v Kenya Pencil Company Ltd & 2 Others [1993] eKLR laid down the seminal test on the burden of proof in objection proceedings. The Court (per Cockar JA) held:
“In objector proceedings, the objector is required to prove on a balance of probabilities that he is the owner of the attached property. The evidential burden then shifts to the decree holder to prove otherwise.
6. In the matter before me, the objector has placed before the Court a Tenancy Agreement in respect of Apartment No. 1B, situated at 33 Windchimes. The agreement is between the objector and Dew Valley, executed on 11th October 2023, with the objector as tenant and Dew Valley as landlord. In addition to the tenancy agreement, the objector has produced a statement of account evidencing consistent rent payments from October 2023 through to 18th September 2025. This documentary trail establishes, on a balance of probabilities, that at the time of the proclamation, the objector was indeed the lawful tenant of the premises.
7. The tenancy agreement and rent payment records further demonstrate that the premises were under the exclusive possession and control of the objector. Possession and control are critical indicators of legal interest in property for purposes of objection proceedings, and in this case, they weigh heavily in favor of the applicant.
8. It is further notable that the decree holder does not dispute that the attachment and proclamation were carried out within the said premises. This concession reinforces the fact that the execution process was directed at property located in a residence lawfully leased and occupied by the objector. The decree holder’s contention that the premises are the residence of the judgment debtors is not supported by evidence, and is contradicted by the tenancy agreement which unequivocally identifies the objector as the sole tenant.
9. It is therefore both logical and legally sound to conclude, on the basis of the documentary evidence presented, that the goods found within the objector’s residence are the property of the objector.
Disposition
10. Accordingly, the objection application dated 11th August 2025 succeeds. The proclamation dated 28th July 2025 and subsequent attachment of goods located at Apartment No. 1B, 33 Windchimes, are hereby set aside. The decree holder shall bear the costs of these objection proceedings.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 2nd DAY OF FEBRUARY 2025
F. MUGAMBI
JUDGE
Delivered in the presence of:
Ms Munene for the DH/respondent
Mr Odegi for the JD/plaintiff
Mr Ochola for the objector
Lilian: Court Assistant