There are two application for consideration today. The fist one is dated 18.02.2022 by Objector, Intespar Ltd. The Objector shoulders the burden of showing that it is the legal and or equitable owner of the properties attached. In this respect it has shown that it is a separate business and occupies the Judgment Debtor’s property on account of a licence granted to it. It has also shown it carries on separate business by producing packing lists, invoices, orders and delivery notes. I find and hold that it has discharged its burden. I allow the application to the extent that the execution against the Objector is now raised. The Decree- Holder shall bear the costs of the application.
The second application is the Judgment Debtor’s application dated 22.02.2022 seeking to set aside the execution on the ground of failure to comply with Order 22 rule 18 of the Civil Procedure Rules which requires a Notice to Show Cause be issued if the decree is more than a year old. It also complains that its tools of trade were attached hence it is unable to do business. It also seeks a stay of 45 days to enable it apply to pay the decretal sum by instalments.
I note from the record that the decree was issued on 25th January 2022 and execution proceeded within a year hence the execution was legal and proper in so far as the judgment debt remained unpaid. Further, I do not find any rule that prohibits the attachment of tools of trade generally. As I understand that rule is limited to professionals. Since the Judgment debtor wishes to pay the judgment debt in instalments, the execution is stayed and the attached goods shall be returned to the Judgment Debtor on the following conditions:
1. The Judgment Debtor shall pay the Decree Holder KES. 500,000.00 within 14 days from the date hereof.
2. The Judgment Debtor shall pay Auctioneers charges to be agreed upon or taxed within 30 days.
3. The Judgment Debtor shall file is application for payment by instalments within 14 days from the date hereof.
4. Mention on 24.03.2022 to confirm compliance.
DATED and DELIVERED at NAIROBI this 2nd day of MARCH 2022
D. S. MAJANJA
JUDGE