1. The Applicant/Respondent being aggrieved by the Petitioner’s attachment of its property in execution of the decree of this Court in this matter, filed this instant Notice of Motion application dated 18th February 2025, premised on Article 50 of the Constitution, section 1A, 1B, 3A & 3B of the Civil Procedure Act and Order 10 Rule 11, Order 45, rules 1 and Order 51 of the Civil Procedure Rules 2010, seeking for orders that:
i. Spent.
ii. That leave be granted to the firm of Rongoma Janji & Associate to come on record for the Respondent/Applicant in place of the firm of Amenya & Company Advocates.
iii. That there be a temporary stay of execution of judgement delivered on the 19th September 2024 pending the hearing and determination of this application inter-parties.
iv. That this Honourable Court be pleased to set aside and or vary the orders issued on 19th September 2024 and any other orders issued subsequently as against the Respondent in this matter.
v. That the Honourable Court be pleased to issue an order to Crater View Auctioneers to release the impounded motor vehicle registration number KCG 139N together with the loaded construction materials and machine pending the hearing and determination of this application.
vi. That the Honourable Court do grant leave to the Respondent to file their defence/response and accompanying documents.
2. The Application is supported by the Affidavit sworn by Jaspal Kasli on 18th February 2025 who deposes that: a default judgement was delivered by this Court on 19th September 2024 following the failure by the Respondent’s then counsel to file a defence despite having entered appearance; the Respondent only became aware of the matter’s progress when he was served with warrant of attachment by Crater View Auctioneers; that the said auctioneers have since proclaimed the said motor vehicle loaded with construction materials and machines; it is the said counsel’s mistake that the matter proceeded undefended, and such mistake ought not be visited upon the client; the Respondent has been deprived of his right to be heard enshrined under Article 50 of the Constitution and principles of natural justice; the Petitioner will suffer no prejudice if the orders sought are granted; it is in the interest of justice that the orders be granted as failure to so do, the Respondent will suffer injustice, hardship and prejudice.
3. The Petitioner opposed the Application vide his Replying Affidavit sworn on 17th March 2025, deponing that by advice of counsel which he relies on, the application is misconceived, incompetent, untenable in law, untenable in law, frivolous and an abuse of court process aimed at derailing the administration of justice. He urged that the same be dismissed with costs assessed at Kshs. 50,000/= to him. He contended that the Application does not meet the threshold and legal principles to warrant the prayers sought. He further deposed that the Applicant had filed a similar motion dated 28th September 2023, seeking reopening of the proceedings thus making this an unjustifiable attempt to relitigate the same issues contrary to the principle of finality of litigation. That the said application was heard and dismissed and therefore the Respondent is bound by the doctrine of res judicata.
4. Relatedly, he relied on the principle of law that the ultimate responsibility to litigate a case rest with the litigant in contending that the Respondent was seeking to absolve itself of responsibility by blaming its former counsel for failure to file a response. He stated that the Response through its own averment that it only became aware of the progress at execution, had exhibited indifference and lack of diligence in the conduct of its case. He urged it is trite that judicial intervention in setting aside default judgements is not as of right, rather a discretionary remedy reserved for litigants who demonstrate vigilance and accountability. He accused the Respondent of falsehood in his claim on not knowing the progress of his matter, noting that the Judiciary through the e-filing system and the Court Tracking System (CTS), constantly sent litigant and their advocates automated messages and emails updating them on case directions and scheduled dates. He added that there existed challenges within which the Respondent could take action against its former advocates for professional misconduct. He argued that it would be unjust, inequitable, and legally untenable for him to endure further infringement of his rights due to the Respondent’s imprudence in the selection of legal representation. He added that the Respondent could not be allowed to litigate issues against his counsel in these proceedings, more so, where the said counsels are not party or privy to. He contended that were the Court to grant the orders sought, the same would be rendered nugatory and devoid of any practical effect. He stated that leniency was on numerous opportunities extended to the Respondent to comply despite the express requirement of filing of a Response within 21 days under Rules 15 (1 and 2(a & b)) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
5. Further the affiant noted that on 28th November 2022, the Respondent misled the Court that he had filed the Response the previous Friday; and the same was not on record, the Court directed that a physical copy be placed in the file. On 8th February 2023, by consent of parties, it was agreed that the matter do proceed viva voce and directions were made that physical copies of all documents be placed on record. He stated that the matter was scheduled for hearing on 13th March, 2023 yet again, the Respondent failed to comply. On the hearing date, the Respondent’s counsel sought an adjournment to substitute its witness. Despite the same been opposed to by his counsel on account that there was nothing to substitute as no response had been filed, the Court nonetheless granted the adjournment with directions that physical copies be placed in the file. He deposed further that when the matter came up for hearing on 20th June 2023, the Respondent failed to appear, yet the date was taken by consent. He went further to state that the Respondent’s counsel misled the Court on 26th July 2023 that he had filed an application to reopen the proceedings. Consequently, the Court directed that the same be served and the matter was scheduled for mention on 27th September 2023. However, on the said date, the counsel informed the Court that they were yet to file a formal application, thus seeking a last chance to so do. He stated that the Court granted the prayer slating the matter for mention on 9th October 2023. He contended that the Respondent has on numerous occasions squandered the opportunities afforded to it by acting with impunity and in total disregard of Court directions. He added that the Application is another attempt to abuse court process; and which should not be entertained by this Court.
6. He further deposed that the Respondent had on numerous occasions engaged in deceitful and coercive tactics by persistently harassing the auctioneer to release the motor vehicle to him, deliberately bypassing himself and his advocates. He added that the Respondent falsely represented to the auctioneer that they were in possession of a valid court order for release of the motor vehicle, while no such order existed. He contended that this was an exhibition of dishonesty, bad faith and calculated efforts to frustrate the enforcement of the judgement. He added that the Respondent had not demonstrated the financial loss it would suffer if the orders sought are not granted; that it is trite that when execution, a legal process, is put in motion, or is likely to be put in motion, it does not amount to substantial loss. He argued that he had a right to the fruits of his judgement and the same can only be postponed upon adequate and sufficient security. The Court was urged to dismiss the application with costs as there has been an inordinate delay of three years that has not been explained or proved with evidence. He urged further that the right to hearing should not be used as a delay tactic especially where a party chose to squander its rights.
7. Subsequently, thereto, an objector proceeding was filed by Nacky Credit Limited under Order 22 Rules 51-54 of the Civil Procedure Rules and section 3A of the Civil Procedure Act, dated 4th June 2025 seeking orders that:
i. Spent
ii. That Nacky Credit Limited be joined in these proceedings as an objector.
iii. That pending the hearing and determination of this application inter-parties, the Petitioner through Crater View Auctioneers be restrained from selling in execution motor vehicles registration numbers KHMA 094K and KCG 139N.
iv. That pending the hearing and determination of this application inter-parties, this Honourable Court be pleased to stay any further execution of the decree herein.
v. That this Honourable Court be pleased to set aside and void the attachment and order the unconditional release of motor vehicles registration numbers KHMA 094K and KCG 139N forthwith.
vi. That the costs of this application be provided for.
8. The Application is grounded on the Supporting Affidavit sworn by Kevan Krishan on the grounds that: at all material times, the objector is and has been the co-owner of the motor vehicles as a financier; the motor vehicles were not legally available for attachment and sale in execution of the decree herein as the objector was not a party; the attachment and intended sale by auction is unlawful and a dereliction of duty by the auctioneer who ought to have conducted searches prior to proclamation; the objector is owed Kshs. 12,514,000/= by the Respondent, being the balance of the loan secured by the motor vehicles and therefore the attachment and sale would defeat its interests; it is fair and just that the attachment and intended sale be nullified and the motor vehicles be released unconditionally.
9. In response thereto, the Petitioner in his sworn affidavit deposed that the application did not meet the threshold and legal principles to warrant the prayers sought, as there is no material demonstrating that the party is properly before Court, or that the actions taken are grounded in any demonstratable corporate mandate. He deposed that the objector had demonstrated that it is a chargee and not as a legal and beneficial owner of the motor vehicles. Relying on section 889(1c) of the Companies Act, 2015, as read with section 15 of the Movable Property Security Rights Act (MPSRA), he stated that any unregistered charge is void as against creditors including himself. He added that the objector had not demonstrated that the alleged debenture relied upon had crystallized. He went further to state that on the advice of counsel, which he relied on, in the absence of crystallization, the alleged debenture remains dormant and cannot form the basis for asserting superior claim over the attached assets.
10. In addition, he deponed that the Respondent’s Director, in his complaint against the auctioneer alleged that the motor vehicle was hired from an unnamed third party, but did not mention the objector or that the same was subject of any charge. He contended that the non-disclosure under oath should alarm the court as it pointed to an attempt to mislead the Court, defeat lawful execution and possibly facilitate the transfer, concealment of attachable assets. He deposed that he was well advised by the auctioneer that the only impounded motor vehicle is a lorry, motor vehicle registration number KCG 139N, and no separately impounded. He added that any roller present on site was loaded onto the lorry and fully concealed by building materials. He argued that there was no statutory or legal obligation upon the auctioneer to verify or investigate the existence of any charges or encumbrances over property before attachment. He added that the imposition of such a duty would introduce impractical obstacles into the execution process paralyzing judgement creditors’ ability to realize their decrees. He accused the Objector of not making any concerted effort to notify the auctioneer or the Court that its security interest was at risk before the attachment. He added that neither he nor this Court was served with a notice of objection of execution. He therefore noted that in the absence of any substantiating evidence supporting the Objector’s claim, it is not entitled to the reliefs sought. The Court was urged to dismiss it with costs.
Submissions
11. In their submissions the Applicant’s Counsel raised the issue of whether the Court should grant the orders sought in the application. Counsel argued that this Court had the authority to set aside and/or vary the impugned orders, as the same were issued without the Applicant being heard.
12. On the discretion to vary and set aside judgements, reliance was placed on the decision in Patel v EA Cargo Handling Services Limited [1974] EA 75. Counsel thereafter reiterated the contents of the Respondent’s grounds herein which the court need not reproduce.
13. Regarding the application dated 18th February 2025, counsel raised the following issues for determination: whether the legal principle of Res Judicata was applicable in the instant application and whether the Respondent’s application met the threshold and the applicable legal principles to warrant the prayers sought. As regards the first issue, reliance was placed on the decisions in Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & Another [2016] eKLR and Zurich Insurance Company PLC v Colin Richard [2011] EWCA CIV 641 to underscore the doctrine on Res Judicata. Counsel submitted that the appropriate test of the Court’s decision in the 28th September 2023 application would have been appealing as was buttressed in the case of Mburu Kinyua v Gachini Tuti (1976-80) 1KLR 790. Counsel submitted that the matter was barred by res judicata, urging that the principle on judicial finality demanded that the application be dismissed to prevent endless cycle of repetitive litigation.
14. On the second issue, Counsel argued that the Respondent wrongly relied on the Civil Procedure Rules instead of the Mutunga Rules, which mandate that the Rules apply to Petitions premised on Article 22 of the Constitution. Counsel, further submitted that the Mutunga Rules under Rules 16 (1 & 2) and Rule 30 empowered the Court to issue extension orders on application or on its own motion; which the Respondent had failed to invoke. It was submitted that invocation of a totally different provision rendered the Application procedurally incompetent as the same is not a mere technical issue curable under Article 159 (2d) of the Constitution, rather a procedural error that goes to the root of the Court’s jurisdiction, the application and its admissibility. On the integrity of constitutional litigation, reliance was levied on the Supreme Court’s holding in Daniel Kimani Njihia v Francis Mwangi Kimani & Another [2015] eKLR. On that note, counsel urged the Court to dismiss the application for being incurably defective, incompetent and in abuse of process.
15. On regularity of the Court’s judgement, it was submitted that the Respondent had failed to show that the judgement was entered irregularly. It was argued that the Respondent had failed to show that there was no service, defective service or breach of any procedural safeguards.
16. Counsel submitted that a party that sought indulgence of the Court must demonstrate diligence, candour, and forthrightness; qualities which were lacking in the instant case. In addition, it was submitted that the Respondent had failed to explain the delay, yet it seeks to regularize it documents three years of the filing deadline capped by the Rules at 21 days of service. Counsel, further submitted that contrary to the Respondent’s assertion that no prejudice would be suffered by the Petitioner, the Petition or would suffer prejudice as he litigated the matter diligently with the legitimate expectation of finality and fairness. Counsel urged that the right to fair hearing was tied to the right to timely adjudication, constitutionally protected under Article 50(1), and the principles of equality of arms under Article 159(2) (b) and access to justice under Article 48 of the Constitution. Reliance was placed on Nicholas Kiptoo arap Korir Salat v IEBC & 6 Others [2013] eKLR.
17. Contending that the attachment and sale of attached goods by itself would not constitute substantial loss, further reliance was placed on the decision in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR). Counsel termed counsel the Respondent’s conduct an abuse of court process and urged the Court to put the same to an end.
18. On whether there was a proper response raising triable issues, counsel submitted that the Respondent failed to either plead the existence of a response or annex a draft response. Counsel urged that the failure was not merely procedural but also substantive. It was argued that without a draft response, the Court could not discern whether the Respondent’s case disclosed any bona fide triable issues deserving judicial inquiry. Counsel reiterated that the application was devoid of merit as it did not meet the threshold for setting aside the judgement.
19. On the Objector’s application dated 4th June 2025, the Objector’s counsel’s submitted on whether it ought to be joined in these proceedings, whether it had legal/equitable interest in the subject motor vehicle and who should bear the costs.
20. On the first issue, counsel relied on Order 22 Rule 51 of the Civil Procedure Rules, in submitting that the objector had a legal and equitable right in the proclaimed motor vehicle and ought to be joined in the proceedings. On the second issue, counsel submitted that the Managing Director in his affidavit had deposed that the Objector was a financial service provider and had advanced a loan to the Respondent secured by the Respondent’s motor vehicle. That it was in practice that the vehicle is registered in names of the Objector and the Respondent to secure its interest of Kshs. 12,514,000/=. Counsel faulted the auctioneer for failing to establish the co-ownership by conducting a search at National Transport & Safety Authority. Counsel urged that the Objector having demonstrated a legal and equitable interest in the motor vehicles, the objection ought to be allowed. On the third issue, Counsel submitted that the auctioneer ought to bear the costs of the objection and storage charges if any, on account for reason that had it conducted due diligence before attachment, the application would not have been necessary and the costs would have been avoided.
21. In his submissions, any on the application dated 4th June 2025, the Petitioner’s counsel raises the following issued for determination: whether the application was legally competent; whether the objector had demonstrated the existence of a valid and legally enforceable security interest over the proclaimed and attached properties capable of taking priority over the decree holder’s rights as an execution creditor; whether the Objector had established a legal or equitable interest in whole or in part of the proclaimed and attached property; and whether the objection proceeding amounts to and constitutes an abuse of the due process of the Court.
22. On the first issue, it was submitted that the Objector failed to file Notice of Objection before filing its Motion, and such omission robbed its application of any legal and jurisdictional foundation. Counsel contended that the proceedings was mounted on a vacuum as the Objector failed to do the act that gave life to it under the applicable rules. Reliance was placed on Order 22 Rule 51 of the Civil Procedure Rules and the decisions in Gikunji & 3 others v Nyaga & 3 others; Wahome & 16 others (Objector) [2023] KEELC 16395 (KLR) and Wayaffe v Toner Holdings Ltd & Another; Muthaiga Heights Apartments Co. Ltd (Objector) [2024] KEELC 7577 (KLR) among others where the issue on compliance with issuance of notice was observed. Counsel submitted that issuance of notice that confered locus standi and triggered the Court’s jurisdiction to entertain the objection. Reliance was placed on the decision in Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR for the proposition that procedure is the handmaiden of justice and it is through adherence to proper processes that justice is attained. Counsel urged that the application be declared incompetent and dismissed with costs.
23. On the second issue, it was contended that the Objector had not demonstrated existence of a valid security interest or that any interest has crystallized to give it priority over a diligent execution creditor. In arguing that the security over the motor vehicle was statutorily void for want of registration, counsel submitted that it was trite law that a charge by a corporate borrower over its assets is expressly registrable under section 889 (1) (c) of the Companies Act, 2015, and section 15 of the MPSRA at the collateral registry. Counsel argued that there is no such certificate of registration from Companies Registry or certificate of perfection from the Collateral Registry. It was contended that in the absence of such proof, the alleged security remains unperfected, and therefore ineffective against third parties. Counsel added that the alleged interest cannot rank against the decree holder’s executing a valid decree.
24. In addition, counsel submitted that the security relied upon by the Objector was a debenture characterized by the Court in Robson v Smith [1895], as a floating security, that allows a company to deal with its assets until a crystallizing event occurs. Counsel submitted that in Kitamaiyu Limited v China Ghansu International Corporation Company Limited; Credit Bank Limited (Objector) [2023] KEELC 20303 (KLR) the court defined a debenture and observed that such a security contract is registrable at the Companies and Collateral Registries. Counsel reiterated that the application was fatally defective as it is completely devoid of any evidence of registration, thus, triggering the direct and severe legal consequence rendering the security void against a creditor and ineffective against third parties.
25. On priority of an execution creditor over a floating charge, reliance was placed on the finding in Diversity Lever East Africa Ltd v Mohanson Foods Distributors Ltd [2004] 1 EA 43, cited with approval by the Court in Ayaz Hussein Mukhi v Sundip Patel & 3 Others [2017] eKLR. Counsel concluded that the Objector has failed to prove a valid, enforceable security interest or any crystallized right that could take priority.
26. On the third issue, while relying on the decision in Wayaffe case (supra) and the case of Precast Portal Structures v Kenya Pencil Co. Ltd & 2 others [1993] eKLR, counsel submitted that it was a fundamental principle of the law that an Objector shoulders the burden of proving with cogent evidence that a superior interest in the attached property existed at the date of attachment; which evidence the Objector has failed to adduce.
27. On the fourth issue, counsel contended that the Objector’s and Respondent’s conduct evidenced collusion designed to obstruct justice and was abuse of this Court’s process. It was submitted that the Application emerged of suspiciously late and against a backdrop of the Respondent’s contradictory and exculpatory silence, reinforcing the inference of a coordinated effort to defraud the lawful execution process. Counsel contended that the application was not only merely unmerited but a manifest abuse of Court’s process.
28. On the last issue, it was urged that contrary to the Objector’s prayer that the costs be borne by the auctioneer, the auctioneer was not a party to the proceedings and his sole role was confined to execution of the decree. It was submitted that consistent with the principle that costs follow the event, the liability for costs lay with the Objector.
Analysis
29. It is not in dispute that the Petitioner sued the Respondent in this Petition and a default judgement was entered in favour of the Petitioner following the Respondent’s failure to defend the suit. What is in dispute is whether this Court can entertain the Respondent’s Application to set aside the said judgement and reopen the proceedings to allow the Respondent file its documents and tender evidence; and whether the proclaimed goods can be released back to the Respondent to protect the Objector’s interest in the proclaimed goods.
30. The issues that arise for determination from the two applications therefore are:
a. Whether the Respondent’s Application is res judicata;
b. Whether the Respondent’s Application meets the threshold for setting aside default judgements;
c. Whether the Objector’s application is competent and properly before this Court; and
d. Whether the Objector has established a legal or equitable interest in the proclaimed property to warrant the release of the same.
Whether the Respondent’s Application is res judicata
31. The instances under which res judicata may be invoked were discussed by the Supreme Court in John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) as follows:
“59. For res judicata to be invoked in a civil matter the following elements must be demonstrated:
a) There is a former judgment or order which was final;
b) The judgment or order was on merit;
c) The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
d) There must be between the first and the second action identical parties, subject matter and cause of action.”
32. Similarly, the Supreme Court defined the term res judicata as follows:
“69. We may draw from the comparative lesson. From the Law of England and Wales, Halsbury’s Laws of England, Volume 12A, 5th Edition, 2015 provides as follows:
(2) Res judicata
The Doctrine of Res Judicata
1603. Basis for doctrine of res judicata
The doctrine of res judicata provides that, where a decision is pronounced by a judicial or other tribunal with jurisdiction over a particular matter, that same matter cannot reopened by parties bound by the decision, save on appeal. It is most closely associated with the legal principle of ‘cause of action estoppel’, which operates to prevent a cause of actions being raised or challenged by either party in subsequent proceedings where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties (or privies), and having involved the same subject matter. However, res judicata also embraces ‘issue estoppel’, a term that is used to describe a defence which may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided, but, in subsequent proceedings between the same parties involving different cause of action to which the same issue is relevant, one of the parties seeks to reopen that issue. For this reason, res judicata has been described as a portmanteau term which is used to describe a number of different legal principles with different juridical origins upon which the courts have endeavoured to impose some coherent scheme only in relatively recent times.
...........
The purpose of the principle of res judicata is to support the good administration of justice in the interests of the public and the parties by preventing abuse and duplicative litigation and its twin principles are often expressed as being the public interest that the courts should not be clogged by re-determinations of the same disputes; and the private interest that it is unjust for a man to be vexed twice with litigation on the same subject matter.
33. Similarly, on whether the doctrine of res judicata is applicable to applications within a main suit, reliance is placed the decision in Uhuru Highway Development Limited v Central Bank of Kenya & 2 others [1996] KECA 102 (KLR), where the Court observed thus:
“What is before us is: can a matter of interlocutory nature decided in one suit be subject of another similar application in the same suit? Does the principle of res judicata apply to an application heard and determined in the same suit? We would like to refer to the decision in the case of RAM KIRPAL VS RUP KUARI reported in I.L.R. Vol. VI 1883 Allahabad series. The Privy Council sitting on appeal from a decision of the full bench of Allahabad High Court said:
“The questions, if the term “res judicata” was intended, as it doubtless was, and was understood by the full Bench, to refer to a matter decided by a court of competent jurisdiction in a former suit, was irrelevant and inapplicable to the case (emphasis ours). The matter decided by Mr. Probyn was not decided in a former suit, but in a proceeding of which the application, in which the orders reversed by the High Court were made, was reversed by the High Court were made, was merely a continuation. It was as binding between the parties and those claiming under them as an interlocutory judgement in a suit is binding upon the parties in every proceeding in that suit, or as a final judgement in a suit is binding upon them in carrying the judgement into execution. The binding force of such a judgement depends not upon S.13, Act I of 1877 but upon general principles of law. If it were not binding, there would be no end to litigation.”
What did the Privy Council say in RAM KIRPAL’s case? Their Lordships clearly were concerned about the desirability of bringing an end to litigation and went on to say that Section 13 of act I of the 1877 which is equivalent to Section 7 of our Civil Procedure Act, was not exhaustive, really; and that the law of “res judicata” did apply to a matter decided in the same suit and that upon its general principles it applied to interlocutory proceedings in the same suit.”
34. The Petitioner’s contended is that the Respondent was attempting to have a second bite at the cherry with this Application as the matter had already been put to rest by the Court in its ruling. After perusing the record, the court noted that the Respondent’s Counsel Mr. Amanya was actively engaged in the proceedings before this Court and in particularly where he told the Court that he had filed the response and further sought directions on the hearing of the matter. Further, he proposed that the same to be disposed by way of viva voce evidence. Counsel failed to attend Court at hearing of the Petitioner and later appeared on 11th July 2023 seeking time to file a formal application to reopen the case.
35. Despite informing the Court on 26th July 2023 that he had filed the application but failed to serve, on 27th September 2023, counsel informed the Court that he had not filed the application, hoping that the parties would reach to an agreement to reopen the proceedings without a formal application. He noted that the opposing counsel was not agreeable and therefore he would to file a formal application. On 9th October 2023, counsel informed the Court that he had filed the application and sought directions on the same. The application was canvassed by way of written submissions and a ruling entered on 2nd May 2024.
36. While dismissing the application for want of merit and competence, the Court noted thus:
“42. The concerns that counsel for the Petitioner raises are not idle. Having regard to the conduct of Mr. Amanya in the course of this matter, it is difficult to take his word for the gospel truth. He is on record as having informed the court that he had filed a response to the Petition when he knew or ought to have known that he had not. He is also on record as having informed the court that he had filed an application to set aside the ex-parte proceedings of 20th June 2023 when he knew or ought to have known that he had not.
43. With this conduct, Mr. Amanya made nonsense of the hallowed cannon that counsel’s word should be his bond. With the misleading pronouncements by him on the foregoing issues, how is the court to believe him when he says that he erroneously diarized the cause? In the circumstances of this case, can the court be accused of demanding too much of Mr. Amanya when it insists that in addition to his naked assertion that he wrongly diarized the matter, he ought to have furnished it (the court) with a copy of his diary if he was to be believed?”
37. From the foregoing, it is apparent that the Application has been litigated before and determined on merit, and any attempt to have it heard again by the Court would be tantamount to the court sitting on appeal of its own decision.
38. The foregoing is fortified by the sentiments of the Court of Appeal in Koross (Legal personal representative of Elijah CA Koross) v Komen & 4 others [2015] KECA 906 (KLR) as follows:
“The philosophy behind the principle of res judicata is that there has to be finality; Litigation must come to an end. It is a rule to counter the all too human propensity to keep trying until something gives. It is meant to provide rest and closure, for endless litigation and agitation does little more than vex and add to costs. A successful litigant must reap the fruits of his success and the unsuccessful one must learn to let go.
Speaking for the bench on the principles that underlie res judicata, Y.V. ChandraChud J in the Indian Supreme Court case of LAL CHAND Vs. RADHA KISHAN, AIR 1977 SC 789 stated and we agree;
“The principle of res judicata is conceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. The principle is also founded in equity, justice and good conscience which require that a party which has once succeeded on an issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue”.
Most unfortunately this case appears to be a repudiation and negation of those salutary aims of the res judicata bar. The defendant and the persons he named in his counterclaim, all of them the respondents herein, were improperly and impermissibly allowed to relitigate, re-agitate and re-canvass matters that were settled with finality by Scriven J. The judgment of the learned judge impugned in this appeal amounted to an impeachment of Scriven J’s judgment when the only lawful path by which the respondents could attain that aim would have been by appeal, which they did not pursue.
….
As res judicata constitutes a mandatory bar that injuncts and precludes any fresh trial or reconsideration of a concluded issue (See this Court’s decision in NGUGI Vs. KINYANJUI & 3 OTHERS, [1989] KLR 146 where Apaloo JA referred to a later reference of a concluded issue to arbitration as “unorthodox proceedings” that effectively reversed an earlier judgment of the High Court “by the back door”, which could aptly be applied to this case) we find and hold that the learned judge’s decision was on that basis also a nullity and cannot be countenanced.
39. Having found that the instant Application is res judicata, the earlier application, the second issue falls by the way side.
Whether the Objector’s application is valid, competent and properly before this Court
40. Order 22 Rule 51 of the Civil Procedure Rules 2010 provides for grounding of objector applications as follows:
51. Objection to attachment [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. Emphasis added.
41. It is trite law that the notice ought to be accompanied by objection proceedings brought under this provision of the law. Rule 52 of the Order adverts to a valid notice. What therefore constitutes a valid notice?
42. In the court’s opinion there is neither a definition or standard that has been set to explain what entails a valid notice nor is there a standard form in the Civil Procedure Rules, 2010 showing what it is. Sub rule 1 states that a party may give notice, therefore making the issue on notice discretionary. However, sub rule 2 makes it mandatory for the notice to be accompanied by an application setting out the nature of the objector’s claim.
43. The issue of notice has been litigated variously and two schools have emerged; one is that it is a mandatory requirement and the other is that the same is a curable defect that ought not delay or impede justice. This court subscribes to the school that holds the failure to file a notice as a curable defect. In STANLEY LIVINDO v RAILA AMOLO ODINGA & 2 others [2013] KEHC 4526 (KLR) the court held that:
“From the submissions made by the respondent it is apparent that only the notice of objection was served on them. The notice was not accompanied by an application. This application as per counsel was served way after the 7 days. It is also obvious that the Court did not give the requisite notice as provided under rule 52. These are procedures that were not complied with. Article 159 (2) of the constitution provides that in exercising judicial authority the Courts and Tribunal shall be guided by the following principles and at article 159 (2)(d) it stated that Justice should be administered without due regard to take procedural technicalities. With this in mind I am of the view that it is not worthy to strike out the objector’s application even though the objector did not follow the laid down procedure in law. In my view striking out the objection proceedings will cause a delay in the process that has taken place for what is of importance now is whether the execution should proceed…”
44. In Celina Trading LLC v Ngao Credit Limited & another; Njoroge (Objector); Auctioneers (Interested Party) [2021] KEHC 18 (KLR) the court adopted a view and held thus:
4.A reading of Order 22 Rule 51(1) above shows that it is couched in discretionary rather than mandatory terms, thus, the failure by the Objector to give notice to the court and other parties is not fatal to the application. In any case, the application was duly served together with the order staying execution thereby bringing to all the parties attention the objection proceedings.
45. I further resonate with the reasoning in Odundo v Kukam Limited & another [2025] KEELC 5702 (KLR) where the Court observed that:
31. In assessing whether the failure to file a notice of objection has fatal consequences, the court opines that it is necessary to consider the purpose of such a notice. The court takes the view that the notice serves to alert the Decree Holder that the attached property is subject to a third-party claim, thereby placing them on notice that ownership of the property is disputed.
46. The court is satisfied that the Application ought to be determined on merit. The Application herein fulfilled the purpose of informing the Petitioner and this Court of the dispute.
Whether the Objector has established a legal or equitable interest in the proclaimed property to warrant the release of the same.
47. On the burden of proof in objection proceedings, the holding of the Court in DUBAI BANK KENYA LTD V COME-CONS AFRICA LTD & ANOTHER [2012] KEHC 4233 (KLR) is instructive:
“Although the law is that in the objection proceedings the Court does not and cannot make findings as to ownership of the property the subject of the objection proceedings but simply decides whether or not the objector has interest, legal or equitable, in the attached property, it is equally true that the onus of proof in objection proceedings is on the objector to establish ownership. See Chotabhai M Patel vs. Chaturbhai M Patel and Another HCCC No. 544 of 1957 (Lewis, J on 8/12/58) (HCU) [1958] EA 743 and Michael A. Mashere vs. Samson Asatsa Civil Appeal No. 76 of 1987.
Therefore it was clearly upon the objector herein to adduce credible evidence in support of its contention. The agreement produced herein as already indicated is insufficient. The documents produced by the plaintiff clearly contradict the documents relied upon by the objector and in fact cast serious aspersions on the bona fides of the documents relied upon by the objector. Based on the two sets of documents and without calling a person from the Registration office from which the alleged documents emanated, the Court cannot state with certainty which of the said documents are genuine. Visram, J (as he then was) in Mbura and Others vs. Castle Brewing Kenya Limited And Another [2006] 1 EA 185 stated that Evidence Act provides that an act is not proved when it is neither proved nor disproved. Since the Court of Appeal has held that the burden in these type of proceedings is on the objector, I am unable to find, based on the material before me, that the objector has satisfied the Court that his claim is merited.”
48. The Objector in this case has produced annexure KK3 being an extract of copy of records from the Registrar of Motor Vehicles, indicating that there exists a charge in favour of the Objector. The Objector’s contention is that there exist charges against the motor vehicles securing a Kshs. 12,514,000/= loan advanced to the Respondent.
49. The position has not been disputed by the Respondent, and the records are clear. What is in issue, is whether the charge ranks in priority over the Petitioner’s claim.
50. The Petitioner disputed the argument by the Objector and in arguing its case has relied on section 889 of the Companies Act which states that:
889. Consequences of failure to register charges created by a company
(1) If a company creates a charge or a security right, the charge (in so far as any security on the property or undertaking of the company is conferred by it) or a security right is void against —
(a) a liquidator of the company;
(b) an administrator of the company; and
(c) a creditor of the company, unless the requirements of the applicable laws for the charge or security right to become effective against third parties have been satisfied.
(2) Subsection (1) does not affect the operation of a contract or obligation for repayment of the money secured by the charge or security right.
(3) If a charge or security right becomes void under this section, the money secured by it immediately becomes payable.
51. The Petitioner further pleads the contents of section 15 of the MPSRA in arguing that he has priority over the Objector as the Objector has failed to produce evidence of having perfected its security over the Respondent’s property. It states:
15. Method for achieving third-party effectiveness
A security right in any movable asset is effective against third parties if a notice with respect to the security right is registered with the Registrar.
52. Section 6 of the Movable Property Security Right Act (MPSRA) provides for creation of security rights as follows:
6. Creation by execution of a security agreement
(1)A security right is created by a security agreement, provided that the grantor has rights in the asset to be encumbered or the power to encumber it.
(2)A security agreement may provide for the creation of a security right in a future asset, but the security right in that asset is created only at the time when the grantor acquires rights in it or the power to encumber it.
(3)A security agreement shall—
(a)be in writing and signed by the grantor;
(b)identify the secured creditor and the grantor;
(c)except in the case of an agreement that provides for the outright transfer of a receivable, describe the secured obligation; and
(d)describe the collateral as provided in section 8.
(4)A security agreement entered into in accordance with this section is enforceable and creates a security right, irrespective of the satisfaction of the requirements that may be imposed by any other written law. Emphasis supplied.
53. The above-mentioned section provides for the elements that would go into the exhaustion of the burden of proving that there indeed existed a valid legal interest against third parties. More specific, subsection 1 dictates that only a security agreement creates a security right, and subsection 4 or ordains that no other provision can impeach such a right created under this section. That said, the Objector is required to produce such an agreement in order to satisfy this Court that there existed a security right over the Respondent’s movable property. Despite subsection 4 above, section 15 sweetens it all by imposing a duty to register the security right in order for the security to be effective against third parties. Without proof of registration, the Objector’s claim against the Petitioner is unsustainable. The foregoing is fortified by the holding in Arun C. Sharma v Ashana Raikundalia T/A A. Raikundalia & Co. Advocates & 4 others [2014] KEHC 1412 (KLR) as follows:
“[6] The objector’s claim in the two motor vehicle is based on a Hire Purchase Agreement number 1425/SEP2013. It claims it financed the purchase of the two vehicles and the entire purchase has not been paid which retains their ownership in them. The balance according to their books stands at Kshs. 851,000. Section 5(1) of the Hire Purchase Act, Cap 507 laws of Kenya, requires every Hire Purchase Agreement to be registered within 90 days of execution. Section 5(2) of the Hire Purchase Act makes payment of Stamp Duty a precondition to registration of Hire Purchase Agreement under the Act. Payment of Stamp Duty is governed by the Stamp Duty Act and the provisions of the said Act are relevant here as it will become clear sooner. Section 5(4) of the Hire Purchase Act provides that any Hire Purchase Agreement which is not registered is not enforceable against the hirer. Consider the foregoing within section 19(1) of the Stamp Duty Act which provides that instrument chargeable with stamp duty shall not be received in evidence in criminal and civil proceedings unless they are duly stamped under the Act. Hire Purchase Agreement produced in this case by the objector are not registered and are not duly stamped for purposes of Stamp Duty Act. The omissions portend two grave legal effects upon the said Hire Purchase Agreements. One, the Agreement are not enforceable against the hirer, thus, it cannot be used to found an objection proceeding on the basis that the objector is entitled to or to have a legal or equitable interest in the whole or part of any property attached in execution of a decree. Second, it cannot be tendered in in evidence in these proceedings whatsoever let alone to prove that the objector is entitled to or to have a legal or equitable interest in the whole or part of any property attached in execution of a decree. The foregoing notwithstanding, the log book for KBC 268F shows that the registered owner is the 3rd Defendant and for all purposes, under the Traffic Act, it is the prima facie owner of the said vehicle unless the contrary is proved. The contrary has not been proved. The fact that the registered person in the log book is the 3rd Defendant is a matter of law which the court just takes judicial notice of. This court is not really determining ownership of the subject motor vehicle except that fact is important in this case as it assists the court to determine whether the objector is entitled to or to have a legal or equitable interest in the whole or part of any property attached in execution of a decree. This fact and the dictate of law on Hire Purchase which has been elaborately discussed above, the objector has not established that it is entitled to or has a legal or equitable interest in the whole or part of any property attached in execution of a decree. Therefore, the vehicle is liable to and was properly proclaimed for attachment in execution of the decree in this case. The decision of Kasango J in the case of Fidelity Commercial Bank Ltd vs. Agritools Ltd & 3 others [2004] eKLR resonates very well with this case as facts therein bear close resemblance with this case especially on the effect of unregistered hire purchase agreement on a vehicle claimed to be subject of such unregistered Hire Purchase Agreement. The learned judge concluded that in law the vehicle subject of unregistered hire purchase agreement belonged to hirer judgment-debtor and is therefore liable to execution. However, let me state that the objector herein is not without remedy; its remedy would be in damages against the hirer and not in the vehicle herein.” Emphasis supplied
54. Importantly, it is worth noting that section 890 of the Companies Act further creates a duty and a resultant offence where a company fails to keep records of charges attaching security rights. That however is not an issue for determination in this Ruling, but evidences the need to produce requisite proof. More so, since it is not clear what the loan was for and the Court is left to speculate whether the same was for the purchase of the motor vehicles whose records the Objector produced. The said section provides as follows:
890. Companies to keep copies of documents creating charges
(1)A company shall keep a copy of every document creating—(a)a charge that is required to be registered under this Part; and(b)a security right created under the Movable Property Security Rights Act.
(2)In the case of a series of uniform debentures, subsection (1) is complied with if the company has available one of the debentures of the series.
(3)If a company fails to comply with subsection (1), the company, and each officer of the company who is in default, commit an offence and on conviction are each liable to a fine not exceeding five hundred thousand shillings.
(4)If, after a company or any of its officers has been convicted of an offence under subsection (3), the company continues to fail to comply with subsection (1), the company, and each officer of the company who is in default, commit a further offence on each day on which the failure continues and on conviction are each liable to a fine not exceeding fifty thousand shillings for each such offence.
55. Consistent with section 107 of the Evidence Act which ordains that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist, it is the finding of this court that the objection herein lacks merit and it is accordingly dismissed.
Parties shall bear own costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 27TH DAY OF APRIL, 2026.
DR. JACOB GAKERI
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
DR. JACOB GAKERI
JUDGE