REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPELLATE DIVISION
CIVIL APPEAL NO. E063 OF 2024
(Coram: Andayi W. F., J.)
WINROSE MUHINDI & PARTNERS............................................................APPELLANT
VERSUS
LAWRENCE NGUGI NJUGUNA.............................................................1 ST RESPONDENT
JACK KURIA NJUGUNA...........................................................................2 ND RESPONDENT
JEREMIAH MUCHENDU t/a ICON AUCTIONEEERS...................3 RD RESPONDENT
(Being an appeal against the ruling and order of Hon. J. W. Munene Adjudicator, delivered on 5 th January 2024 in Milimani SCC Comm. Claim No. E025 of 2023)
JUDGMENT
Background
1. This appeal through the memorandum dated 15 th January 2024 arises from a ruling of the Small Claims Court (SCC) delivered on 5 th January 2024. The ruling allowed an application dated 16 th October 2023 by the 1 st respondent as an objector to attachment of motor vehicle registration number KCW 886P in execution of a decree by the appellant against the 2 nd respondent. The notice of motion followed a notice of objection under Order 22 Rule 51 of the Civil Procedure Rules 2010 of the same date.
The case before the Small Claims Court
2. The appellant Winrose Muhindi & Partners filed and obtained judgment on admission against the 2 nd respondent herein Jack Kuria Njuguna on a claim dated 4 th January 2023 for a sum of KShs 450,000/= lent to the 2 nd respondent and who had failed to repay the same. The appellant’s claim for interest on the said sum at commercial bank rates and damages for breach of contract was however declined by the court. A decree in the sum of KShs 478,553.42 being the principal sum and interest at court rates and KShs 50,800/= as costs was issued on 14 th June 2023.
3. In pursuance of execution of the decree, the appellant instructed Icon Auctioneers through a letter dated 4 th August 2023 to proceed with execution. The auctioneers took out warrants of attachment and warrants of sale of moveable property both dated 30 th September 2023 in the sum of KShs 537,194.42. The auctioneers issued a notice of proclamation dated 2 nd October 2023 to the 2 nd respondent/judgment debtor.
4. The 1 st respondent herein filed a notice of objection dated 16 th October 2023 as well as a notice of motion of even date objecting to the proclamation and attachment of motor vehicle registration No. KCW 886P and praying for the unconditional release of the same to him. The grounds were that the motor vehicle belonged to him and not the 2 nd respondent/judgment debtor. In his supporting affidavit sworn on 16 th October 2023, the 1 st respondent attached a copy of records from the National Transport and Safety Authority (NTSA) showing that as at 12 th October 2023 the registered owner of the vehicle was Lawrence Ngugi Njuguna, the 1 st respondent herein and the objector before the SCC. He deposed inter alia that the auctioneer had not issued a proclamation for the said vehicle and had failed to conduct a search to determine the owner thereof.
5. The appellant opposed the application through two replying affidavits, one sworn on 24 th October 2023 by Winrose Njuguna and another one on 23 rd October 2023 by Jeremiah Kiarie Muchendu, the auctioneer. She inter alia attached a notice of proclamation dated 2 nd October 2023 issued by the auctioneer to the 2 nd respondent. The auctioneer deposed in his replying affidavit that he had served the proclamation upon the 2 nd respondent’s driver of the said vehicle on 2 nd October 2023. Further that he obtained a copy of records for the said vehicle from the National Transport and Safety Authority (NTSA) showing that as at 4 th October 2023, the vehicle was registered in the name of Jack Kuria Njuguna the 2 nd respondent herein.
6. The appellant further deposed that the respondents were well known to her as brothers. As such, the 1 st respondent/objector was acting in collusion with the 2 nd respondent/judgment debtor by having the vehicle allegedly transferred into the 1 st respondent’s name after the proclamation had been issued. Further that the same had been done without any form of consideration and in filing the objection proceedings the same was meant to defeat the execution proceedings by the appellant when in fact the objector had deposed in his supporting affidavit that the said motor vehicle did not belong to him.
7. The appellant filed submissions dated 21 st November 2023 to that application.
8. In its ruling dated 5 th January 2024, the SCC upheld the objection by the 1 st respondent herein finding that the vehicle belonged to the 1 st respondent. Further that in as much as he was a brother to the 2 nd respondent, the 1 st respondent/objector was not a party to the claim and his vehicle could not be attached in execution in a decree that was not against him.
Grounds of appeal
9. The appellant was dissatisfied with the learned Adjudicator’s decision and now appeals to this court on the following ten grounds:
a. The learned trial magistrate (sic) erred in law and in fact in failing to find that the notice of motion dated 16 th October 2023 met the legal threshold for granting of the orders sought. (This ground of appeal as framed contradicts the other grounds and would be appropriate if the 1 st respondent was the one appealing).
b. The learned Honourable Judge (sic) erred in law and in fact, by failing to uphold judicial precedent, particularly the doctrine of stare decisis as in the case of Obadha v Omoro (Civil Case E014 of 2021) [2022] KEHC 332 (KLR), Arun C. Sharma versus Ashana Raikundalia T/A A. Raikundalia & Co. Advocates & 4 others [2014] eKLR, Grace Wanjiru Mbugua v Philip Karumi Matu [2009] eKLR.
c. In allowing the Objection and finding for the Objector, the learned trial magistrate gravely erred in law and in fact by ignoring the averments contained in the appellant’s & Interested Party’s Replying Affidavits sworn on 24 th October 2023 and 23 rd October 2023 respectively, and further disregarding the appellant’s & Interested Party’s joint written submissions dated 21 st November 2023.
d. The learned trial magistrate gravely erred in law and in fact by failing to consider the entire evidence before it, including the evidence of the appellant to arrive at a just determination of the matter before it.
e. The learned trial magistrate misdirected herself by disregarding the clearly demonstrated sequence of events that led to the objection proceedings and settled judicial precedence in similar circumstances, which affected the analysis of evidence, the issue of burden of proof and eventually the outcome of the findings of the Court.
f. The learned trial magistrate misapplied the law and misdirected herself by failing to acknowledge and apply trite law that the objector to attachment in execution proceedings has the burden of proof in relation to the facts in issue and relevant to the objection, the facts in issue in any case being those disputed issues of fact which a party must prove to succeed and obtain judgement in their favour.
g. The learned trial magistrate misdirected herself by failing to take into consideration any of the authorities that were presented by the appellant and the Interested Party in support of the respective replying affidavits dated 23 rd October 2023 and 24 th October 2023 respectively, thus creating an impression of actual bias.
h. The learned trial magistrate erred in law and in fact in failing to apply the doctrine of adverse inference against the 1 st respondent when the facts and/or circumstances of the case warranted such application of the said doctrine.
i. The learned trial magistrate erred in law and in fact in finding in favour of the respondent in the face of clear uncontroverted evidence as to the ownership of the subject motor vehicle at the time of proclamation and seizure.
j. The appealed Ruling and Orders were against the weight of evidence on record.
10. The appellant therefore prays that the appeal be allowed and the ruling of the learned Adjudicator dated 5 th January 2024 be set aside and substituted with an order allowing the appellant’s application before the SCC dated 15 th January 2024 (sic). This prayer as sought is erroneous as it would be against the appeal. The correct prayer, in line with the grounds of appeal should be that the application by the 1 st respondent/objector dated 16 th October 2023 be dismissed. Perhaps the error in drafting arose due to conflating the appeal herein and the application for stay of execution dated 15 th January 2024 filed herein at the same time as the appeal.
11. The grounds of appeal take the form commonly applied to appeals from the magistrates’ courts indicating that “the learned magistrate erred in law and in fact.” This is not correct because the SCC is presided over by an Adjudicator and not a magistrate and appeals to the High Court from the SCC are restricted to points of law. This court will only consider the grounds that address issues of law. In summary, the grounds are that the learned Adjudicator (note, not magistrate) failed to properly evaluate the application before her and to apply the law relating to objection to attachment proceedings and thereby arrived at an erroneous decision that was against the weight of the affidavit evidence.
Submission
12. The appeal was canvassed by way of written submissions filed by learned counsels for the appellant and the 1 st respondent. The 2 nd and 3 rd respondents did not file submissions. The submissions are considered in the analysis that follows.
13. The appellant has argued the grounds of appeal distinctly except for grounds 4 and 5 which are argued as one. Her arguments are that the notice of motion dated 16 th October 2023 by the 1 st respondent herein failed to meet the legal threshold for granting the orders of objection and the learned Adjudicator was therefore in error to uphold the objection as she failed to consider the replying affidavits by the appellant as well as the submissions and precedents made available to her by the appellant and to correctly apply the law to the facts of the case.
14. The 1 st respondent on his part supports the decision of the learned Adjudicator. He submits that the attachment of the subject motor vehicle was wrongful as the 1 st respondent had already acquired ownership of the vehicle way back on 9 th January 2023 for valuable consideration, making it incapable of attachment as it was no longer the property of the 2 nd respondent/judgment debtor. He submits further that in any case, the decretal sum was already settled and if the appeal is on the issue of costs as awarded by the SCC to the 1 st respondent, the same was an exercise of discretion by the SCC court.
15. The issue of the decretal sum having been settled was not raised before the SCC. The 2 nd appellant/judgment debtor did not file any affidavit before the SCC in response to the application for objection by the 1 st appellant and therefore that issue was not brought to the attention nor considered by the SCC. The issue has been raised in the submissions to the appeal herein without any supporting evidence. Consequently, the same is not for consideration by this court.
16. I have considered the grounds of appeal raised in the memorandum of appeal, the record of appeal and the submissions by learned counsels for the appellant and the 1 st respondent. The issue for determination is whether or not the learned Adjudicator correctly evaluated the application for objection to attachment before her, considering the rival positions presented by the parties and applying the law in arriving at her decision
Analysis
17. As a preliminary issue it is worthy to note that the SCC is presided over by an Adjudicator and not a magistrate as adverted to in the grounds of appeal and submissions. It is important to bear in mind the foundational provisions of the Small Claims Court Act (Cap. 10A) Laws of Kenya (SCCA) in order to appreciate and always have at the back of the mind the spirit behind the establishment of this very distinguished court. Distinguished because it has revolutionized determination of cases at the lower tier level with expedition. So that its foundational characteristics need to be adhered to all the time. Otherwise, it may get meshed up with the operations of the magistrates’ court and there it loses meaning as a different court altogether.
18. In the Kenyan context, an Adjudicator is indeed a magistrate. However, while presiding over the SCC she removes the robes of a magistrate and wears the ordinary garment of an Adjudicator who in my thinking, in the spirit of the SCCA, should come down to the level of the ordinary person on the streets to determine the claims presented before her by the parties. The reasons are that the SCC is designed to be simple, that is, without the strictures of formal procedure and strict evidentiary rules, fast and accessible. These reasons will come out clearer in the analysis and determination of this appeal. So, the operations of the SCC must be distinguished from those of the magistrate’s court.
19. The SCCA is a self-governing statute in terms of procedural law. It provides in its long title that it is “ an Act of Parliament to establish Small Claims Court; to provide for the jurisdiction and procedures of the Court and for connected purposes.” Under the court’s guiding principles, section 3(3)(c) and (d) enjoin the court to adopt such procedures as the Court deems appropriate to ensure (c)fairness of process; and (d)simplicity of procedure. Under section 17 of the Act the court is granted the discretion to control its own procedure in conformity with the Act in the determination of claims before it. In the exercise of that discretion, the Court is obliged to have regard to the principles of natural justice. For me, these provisions are an indication that the court will only borrow from other procedural laws where it is expressly provided for under the Act.
20. An appeal to this court from the SCC is on points of law only as provided for under section 38 of the SCC Act . So, the first issue for this court to consider is whether the grounds of appeal raised by the appellant are on points of law only. The submissions by both learned counsels take the form of submissions before the magistrates’ court, urging this court to analyze and reassess the material on record and reach its own findings as is required under section 78 of the Civil Procedure Act (Cap. 21) Laws of Kenya. That is misplaced. From the provisions of the Act, it follows that this court cannot proceed with the case by way of a rehearing and re-evaluation of evidence as is the norm in other civil matters as provided for under the Civil Procedure Act and Rules which have limited application in proceedings before the SCC.
21. The Court of Appeal has provided guidance on how to proceed in an appeal based on point of law only in the case of Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR) where it stated that:
“Those points in an appeal of the kind before us, being from an election court’s decision, are further circumscribed by Section 85A of the Elections Act which limits appeals to the Court of Appeal to matters of law only. It is therefore quite strange and improper that each of the seventeen grounds, without exception, commences with a standard expression “the judge erred in fact and law” or “the learned Judge erred in law and in fact.” Clearly the drafters of the memorandum did not have the legal provision in active contemplation. Had they done so, they would have found that by invoking factual errors, they were inviting jurisdictional objections to their entire appeal.”
22. It follows from this decision that an appeal to this court from the SCC being on points of law only as provided for under section 38 of the SCC Act this court should not interfere with the findings of fact by the trial court unless the decision is bad in law and cannot be supported by the evidence tendered. On that issue the Court of Appeal in M’Riungu v. Republic [1983] KLR 455, held thus:
“where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”.
23. The appellate court may however interfere with the findings of the trial court where it is demonstrated that there was no evidence at all upon which such findings were based or that the evidence relied upon was of such a nature that no reasonable tribunal, properly addressing its mind on it, could have made such findings (see for instance Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] eKLR).
24. Another important feature of the SC is that under section 3(3) of the Act it is provided that the Court shall adopt such procedures as the Court deems appropriate to ensure inter alia the timely disposal of all proceedings before the Court using the least expensive method and simplicity of procedure.
25. Moreover, under Section 32 of the Act the strict evidentiary rules applicable in other courts are not wholly applied in the Small Claims Court. It is further provided that the Court may admit as evidence any oral or written testimony, record, or other material even though the same is not admissible as evidence in any other Court under the law of evidence (Emphasis and underlying supplied).
26. Considering these elements of the SCC it would appear to me that the manner of proof of a claim in a SCC is that of a reasonable person as per the appreciation of the material tendered to the Adjudicator who is seized of the matter properly applying her mind to the law and facts of the case having observed the rules of natural justice as provided for under the Act and not being held captive by the strictures of the magistrates’ court processes as laid down in the Civil Procedure Act (Cap. 21) Laws of Kenya and the Rules made thereunder and the Law of Evidence Act (Cap. 80) Laws of Kenya.
27. This is because the SCC Act exempts the court proceedings from the rigid application of the standards of evidence applicable in other court proceedings and permits the court to include as evidence any material that it deems credible or trustworthy. It is upon the Adjudicator to determine the material to rely upon. To this end, the method and style of the SCC has been referred to as “unceremonious” by Bruce Zucker and Monica Her in their seminal paper “ The People's Court Examined: A Legal and Empirical Analysis of the Small Claims Court System .” It is a court bereft of procedural technicalities. Thus, the case before a SCC is a claim and not a suit.
28. In the present case, the appellant was in the process of executing a decree of the SCC when the objection proceedings were filed by the 1 st respondent. As stated above, the appeal is basically on whether or not the learned Adjudicator correctly evaluated the application for objection to attachment, considered the rival positions presented by the parties and correctly applied the law in arriving at her decision.
29. The application is expressed to be brought under Order 22 rule 51(1) of the Civil Procedure Rules which provides as follows:
“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”
30. The said provision is applicable to the application herein by virtue of section 25(1) of the SCCA which provides that any order or decree of the Court shall be enforceable in accordance with the Civil Procedure Rules (Sub. Leg.).
31. In the case of Arun C Sharma v Ashana Raikundalia t/a A Raikundalia & Co Advocates & 2 others [2014] KEHC 2430 (KLR) the court held that the objector bears the burden of proving that he is entitled to or has legal or equitable interest on the whole or part of the attached property.
32. It is the 1 st respondent’s contention that at the time of attachment of the subject motor vehicle he had purchased the same from the 2 nd respondent for valuable consideration on 9 th January 2023.
33. The appellant on her part insists that there was no such sale and purchase of the vehicle as alleged since there is no evidence that valuable consideration passed from the 1 st respondent to the 2 nd respondent. That she was aware that the two were brothers and what they were thus acting in collusion in order to defeat the process of execution. She has cited the case of Obadha v Omoro [2022] KEHC 332 (KLR) were the High Court on appeal found that the transfer of a motor vehicle after proclamation had been done in execution of decree of the court, against the judgment debtor was an attempt to evade execution of lawful decree of the court and dismissed the appeal by the objector.
34. In the present case the objector’s contention before the SCC was that there was no proclamation issued before attachment and that the attached motor vehicle registration No. KCW 886P belonged to him and it was registered in his name and therefore the same was not available in execution to satisfy the decree against the 2 nd respondent.
35. The contention that the auctioneer had failed to ascertain ownership of the vehicle before attachment and that no proclamation had been issued were dispelled by the replying affidavit of the appellant and the auctioneer. Through the said affidavits, they together showed that the auctioneer had conducted a search of the particulars of the motor vehicle and obtained a copy of records from NTSA which showed that as at 4 th October 2023, the vehicle was registered in the name of Jack Kuria Njuguna, the 2 nd respondent herein/judgment debtor before te SCC and further attached a notice of proclamation dated 2 nd October 2023 issued by the auctioneer to the 2 nd respondent. The auctioneer deposed in his replying affidavit that he had served the proclamationnotice upon the 2 nd respondent’s driver of the said vehicle on 2 nd October 2023. There was no supplementary affidavit by the 1 st respondent/objector to challenge those depositions.
36. The conclusion therefore should be that a proper notice of proclamation was issued and that as at 4 th October 2023, the vehicle was registered in the name of Jack Kuria Njuguna, the 2 nd respondent herein who was the judgment debtor before the SCC.
37. The 1 st respondent alleged that the motor vehicle had been sold to him by the 2 nd respondent sometime on 9 th January 2023 and annexed an agreement for sale of the same date between himself and the 2 nd respondent herein. There was however no explanation why the transfer had not been registered as at 4 th October 2023, about nine months later when the search conducted by the appellant’s advocates showed that the vehicle was registered in the name of the 2 nd respondent herein/judgment debtor.
38. Section 8 of the Traffic Act (Cap. 403) Laws of Kenya provides that the person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle. The auctioneer was therefore correct to deem the vehicle as being owned by the 2 nd respondent herein/judgment debtor since he was the one in whose name the vehicle was registered at the time the execution process commenced.
39. In Precast Portal Structures v Kenya Pencil Company Ltd & 2 others [1993] KEHC 100 (KLR) it was held: -
“The objector must adduce evidence to show that at the date of the attachment he had a legal or equitable interest in the property. 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…
“The burden is on the objector to prove and establish his right to have attached property released from the attachment. On the evidential material before the court, a release from attachment may be made if the court is satisfied.
i) That the property was not when attached, held by the Judgment-Debtor for himself or by some other person in trust for the Judgment-Debtor, or.
ii) That the objector holds that property on his own account.
The court further observed that: -
“But where the court is satisfied that the property was, at the time of attachment, held by the Judgment Debtor as his own and not on account of any other person, or that it was held by some other person in trust for the Judgment-Debtor or that ownership has changed whereby the Judgement-Debtor has been divested of the property in order to evade execution on the change is tainted with fraud, the court shall dismiss the objection”
“The court takes into account the grounds of objections raised and the contentions of the respective parties to the objection proceedings. Any special features evident in the proceedings which throw light on the controversy must be regarded.”
40. The 1 st respondent’s contention is that having produced a copy of records showing that he was the registered owner of the vehicle then he had discharged the burden to prove that the same was not subject to attachment to satisfy the decree against the 2 nd respondent.
41. However, I am persuaded that the contention by the appellant that in the absence of evidence of any consideration passing from the 1 st respondent to the 2 nd respondent for the purchase of the said vehicle, the fact that no transfer had been effected as at the time the proclamation notice was issued and considering that the two were brothers, the alleged sale agreement between them dated 9 th January 2023 was a sham. It was a ploy prepared after the proclamation and intended to remove the said motor vehicle from the appellant’s reach in execution against the 2 nd respondent.
42. In the case of Precast Portal Structures (supra) the High court went further to state that the court should conduct an inquiry and ascertain matters which are material to reaching a decision as to whether the objection should be sustained and the execution stopped.
43. There is no indication that the learned Adjudicator conducted such an inquiry or even gave regard to the material in the affidavits before her sworn by the appellant. For instance, the appellant’s depositions that he had personal knowledge that the respondents were brothers was not contested but the learned Adjudicator does not appear to have given it any regard in her evaluation of the affidavit evidence. That contention was material to show that it was easy for the brothers to collude for the 1 st respondent herein to aid the 2 nd respondent to evade execution by alleging that the vehicle had been sold to him.
44. I find that considering the evidence before her, the learned Adjudicator failed to properly apply her mind to the same and arrived at a conclusion that cannot be found to have been reasonable in the circumstances even under the constitutive elements of the SCC in finding that the objection by the 1 st respondent had been proved on the standards of a reasonable tribunal properly directing its mind to the issues before it. On that basis, I find that the decision has to be disturbed.
45. Consequently, I find the appeal has merit and it succeeds. The order of the learned Adjudicator allowing the objection by the 1 st respondent is set aside and substituted with a finding that the respondent did not prove his objection on a reasonable standard before the SCC. The ruling of the learned Adjudicator dated 5 th January 2024 is hereby set aside and substituted with a ruling dismissing the objection by the 1 st respondent.
46. The costs of the appeal and the objection proceedings before the SCC are awarded to the appellant and to be paid by the 1 st respondent herein.
47. The orders issued herein on 7 th February 2024 restoring the subject vehicle registration number KCW 886P to the 1 st respondent are vacated and the 1 st respondent ordered to immediately hand over the motor vehicle registration number KCW 886P to the 3 rd respondent, Jeremiah Muchendu t/a Icon Auctioneers or any other auctioneer that may be appointed by the appellant at the auctioneer’s appointed yard within 48 hours of this order failure to which the 3 rd respondent or other auctioneer so appointed shall be at liberty to impound the same and proceed with the process of execution unless any and all outstanding amounts including costs arising from the decree of the SCC are settled or shown to have been settled.
48. Orders accordingly.
49. Dated signed, and delivered on the Virtual Platform, Microsoft Teams this 15 th day of July 2026
ANDAYI W. FRANCIS
JUDGE
In the presence of:
... for the Appellant.
... for the 1 st Respondent.
... for the 2 nd Respondent.
... for the 3 rd Respondent.
Ummu h/b for Amina: Court Assistant.
Note: This ruling has been uploaded to the CTS system for access by parties on the date causelisted.
ANDAYI W. FRANCIS
JUDGE
milimani HCCA No. e063/202413/scc_objection to attachment
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPELLATE DIVISION
CIVIL APPEAL NO. E063 OF 2024
(Coram: Andayi W. F., J.)
WINROSE MUHINDI & PARTNERS............................................................APPELLANT
VERSUS
LAWRENCE NGUGI NJUGUNA.............................................................1 ST RESPONDENT
JACK KURIA NJUGUNA...........................................................................2 ND RESPONDENT
JEREMIAH MUCHENDU t/a ICON AUCTIONEEERS...................3 RD RESPONDENT
(Being an appeal against the ruling and order of Hon. J. W. Munene Adjudicator, delivered on 5 th January 2024 in Milimani SCC Comm. Claim No. E025 of 2023)
JUDGMENT
Background
1. This appeal through the memorandum dated 15 th January 2024 arises from a ruling of the Small Claims Court (SCC) delivered on 5 th January 2024. The ruling allowed an application dated 16 th October 2023 by the 1 st respondent as an objector to attachment of motor vehicle registration number KCW 886P in execution of a decree by the appellant against the 2 nd respondent. The notice of motion followed a notice of objection under Order 22 Rule 51 of the Civil Procedure Rules 2010 of the same date.
The case before the Small Claims Court
2. The appellant Winrose Muhindi & Partners filed and obtained judgment on admission against the 2 nd respondent herein Jack Kuria Njuguna on a claim dated 4 th January 2023 for a sum of KShs 450,000/= lent to the 2 nd respondent and who had failed to repay the same. The appellant’s claim for interest on the said sum at commercial bank rates and damages for breach of contract was however declined by the court. A decree in the sum of KShs 478,553.42 being the principal sum and interest at court rates and KShs 50,800/= as costs was issued on 14 th June 2023.
3. In pursuance of execution of the decree, the appellant instructed Icon Auctioneers through a letter dated 4 th August 2023 to proceed with execution. The auctioneers took out warrants of attachment and warrants of sale of moveable property both dated 30 th September 2023 in the sum of KShs 537,194.42. The auctioneers issued a notice of proclamation dated 2 nd October 2023 to the 2 nd respondent/judgment debtor.
4. The 1 st respondent herein filed a notice of objection dated 16 th October 2023 as well as a notice of motion of even date objecting to the proclamation and attachment of motor vehicle registration No. KCW 886P and praying for the unconditional release of the same to him. The grounds were that the motor vehicle belonged to him and not the 2 nd respondent/judgment debtor. In his supporting affidavit sworn on 16 th October 2023, the 1 st respondent attached a copy of records from the National Transport and Safety Authority (NTSA) showing that as at 12 th October 2023 the registered owner of the vehicle was Lawrence Ngugi Njuguna, the 1 st respondent herein and the objector before the SCC. He deposed inter alia that the auctioneer had not issued a proclamation for the said vehicle and had failed to conduct a search to determine the owner thereof.
5. The appellant opposed the application through two replying affidavits, one sworn on 24 th October 2023 by Winrose Njuguna and another one on 23 rd October 2023 by Jeremiah Kiarie Muchendu, the auctioneer. She inter alia attached a notice of proclamation dated 2 nd October 2023 issued by the auctioneer to the 2 nd respondent. The auctioneer deposed in his replying affidavit that he had served the proclamation upon the 2 nd respondent’s driver of the said vehicle on 2 nd October 2023. Further that he obtained a copy of records for the said vehicle from the National Transport and Safety Authority (NTSA) showing that as at 4 th October 2023, the vehicle was registered in the name of Jack Kuria Njuguna the 2 nd respondent herein.
6. The appellant further deposed that the respondents were well known to her as brothers. As such, the 1 st respondent/objector was acting in collusion with the 2 nd respondent/judgment debtor by having the vehicle allegedly transferred into the 1 st respondent’s name after the proclamation had been issued. Further that the same had been done without any form of consideration and in filing the objection proceedings the same was meant to defeat the execution proceedings by the appellant when in fact the objector had deposed in his supporting affidavit that the said motor vehicle did not belong to him.
7. The appellant filed submissions dated 21 st November 2023 to that application.
8. In its ruling dated 5 th January 2024, the SCC upheld the objection by the 1 st respondent herein finding that the vehicle belonged to the 1 st respondent. Further that in as much as he was a brother to the 2 nd respondent, the 1 st respondent/objector was not a party to the claim and his vehicle could not be attached in execution in a decree that was not against him.
Grounds of appeal
9. The appellant was dissatisfied with the learned Adjudicator’s decision and now appeals to this court on the following ten grounds:
a. The learned trial magistrate (sic) erred in law and in fact in failing to find that the notice of motion dated 16 th October 2023 met the legal threshold for granting of the orders sought. (This ground of appeal as framed contradicts the other grounds and would be appropriate if the 1 st respondent was the one appealing).
b. The learned Honourable Judge (sic) erred in law and in fact, by failing to uphold judicial precedent, particularly the doctrine of stare decisis as in the case of Obadha v Omoro (Civil Case E014 of 2021) [2022] KEHC 332 (KLR), Arun C. Sharma versus Ashana Raikundalia T/A A. Raikundalia & Co. Advocates & 4 others [2014] eKLR, Grace Wanjiru Mbugua v Philip Karumi Matu [2009] eKLR.
c. In allowing the Objection and finding for the Objector, the learned trial magistrate gravely erred in law and in fact by ignoring the averments contained in the appellant’s & Interested Party’s Replying Affidavits sworn on 24 th October 2023 and 23 rd October 2023 respectively, and further disregarding the appellant’s & Interested Party’s joint written submissions dated 21 st November 2023.
d. The learned trial magistrate gravely erred in law and in fact by failing to consider the entire evidence before it, including the evidence of the appellant to arrive at a just determination of the matter before it.
e. The learned trial magistrate misdirected herself by disregarding the clearly demonstrated sequence of events that led to the objection proceedings and settled judicial precedence in similar circumstances, which affected the analysis of evidence, the issue of burden of proof and eventually the outcome of the findings of the Court.
f. The learned trial magistrate misapplied the law and misdirected herself by failing to acknowledge and apply trite law that the objector to attachment in execution proceedings has the burden of proof in relation to the facts in issue and relevant to the objection, the facts in issue in any case being those disputed issues of fact which a party must prove to succeed and obtain judgement in their favour.
g. The learned trial magistrate misdirected herself by failing to take into consideration any of the authorities that were presented by the appellant and the Interested Party in support of the respective replying affidavits dated 23 rd October 2023 and 24 th October 2023 respectively, thus creating an impression of actual bias.
h. The learned trial magistrate erred in law and in fact in failing to apply the doctrine of adverse inference against the 1 st respondent when the facts and/or circumstances of the case warranted such application of the said doctrine.
i. The learned trial magistrate erred in law and in fact in finding in favour of the respondent in the face of clear uncontroverted evidence as to the ownership of the subject motor vehicle at the time of proclamation and seizure.
j. The appealed Ruling and Orders were against the weight of evidence on record.
10. The appellant therefore prays that the appeal be allowed and the ruling of the learned Adjudicator dated 5 th January 2024 be set aside and substituted with an order allowing the appellant’s application before the SCC dated 15 th January 2024 (sic). This prayer as sought is erroneous as it would be against the appeal. The correct prayer, in line with the grounds of appeal should be that the application by the 1 st respondent/objector dated 16 th October 2023 be dismissed. Perhaps the error in drafting arose due to conflating the appeal herein and the application for stay of execution dated 15 th January 2024 filed herein at the same time as the appeal.
11. The grounds of appeal take the form commonly applied to appeals from the magistrates’ courts indicating that “the learned magistrate erred in law and in fact.” This is not correct because the SCC is presided over by an Adjudicator and not a magistrate and appeals to the High Court from the SCC are restricted to points of law. This court will only consider the grounds that address issues of law. In summary, the grounds are that the learned Adjudicator (note, not magistrate) failed to properly evaluate the application before her and to apply the law relating to objection to attachment proceedings and thereby arrived at an erroneous decision that was against the weight of the affidavit evidence.
Submission
12. The appeal was canvassed by way of written submissions filed by learned counsels for the appellant and the 1 st respondent. The 2 nd and 3 rd respondents did not file submissions. The submissions are considered in the analysis that follows.
13. The appellant has argued the grounds of appeal distinctly except for grounds 4 and 5 which are argued as one. Her arguments are that the notice of motion dated 16 th October 2023 by the 1 st respondent herein failed to meet the legal threshold for granting the orders of objection and the learned Adjudicator was therefore in error to uphold the objection as she failed to consider the replying affidavits by the appellant as well as the submissions and precedents made available to her by the appellant and to correctly apply the law to the facts of the case.
14. The 1 st respondent on his part supports the decision of the learned Adjudicator. He submits that the attachment of the subject motor vehicle was wrongful as the 1 st respondent had already acquired ownership of the vehicle way back on 9 th January 2023 for valuable consideration, making it incapable of attachment as it was no longer the property of the 2 nd respondent/judgment debtor. He submits further that in any case, the decretal sum was already settled and if the appeal is on the issue of costs as awarded by the SCC to the 1 st respondent, the same was an exercise of discretion by the SCC court.
15. The issue of the decretal sum having been settled was not raised before the SCC. The 2 nd appellant/judgment debtor did not file any affidavit before the SCC in response to the application for objection by the 1 st appellant and therefore that issue was not brought to the attention nor considered by the SCC. The issue has been raised in the submissions to the appeal herein without any supporting evidence. Consequently, the same is not for consideration by this court.
16. I have considered the grounds of appeal raised in the memorandum of appeal, the record of appeal and the submissions by learned counsels for the appellant and the 1 st respondent. The issue for determination is whether or not the learned Adjudicator correctly evaluated the application for objection to attachment before her, considering the rival positions presented by the parties and applying the law in arriving at her decision
Analysis
17. As a preliminary issue it is worthy to note that the SCC is presided over by an Adjudicator and not a magistrate as adverted to in the grounds of appeal and submissions. It is important to bear in mind the foundational provisions of the Small Claims Court Act (Cap. 10A) Laws of Kenya (SCCA) in order to appreciate and always have at the back of the mind the spirit behind the establishment of this very distinguished court. Distinguished because it has revolutionized determination of cases at the lower tier level with expedition. So that its foundational characteristics need to be adhered to all the time. Otherwise, it may get meshed up with the operations of the magistrates’ court and there it loses meaning as a different court altogether.
18. In the Kenyan context, an Adjudicator is indeed a magistrate. However, while presiding over the SCC she removes the robes of a magistrate and wears the ordinary garment of an Adjudicator who in my thinking, in the spirit of the SCCA, should come down to the level of the ordinary person on the streets to determine the claims presented before her by the parties. The reasons are that the SCC is designed to be simple, that is, without the strictures of formal procedure and strict evidentiary rules, fast and accessible. These reasons will come out clearer in the analysis and determination of this appeal. So, the operations of the SCC must be distinguished from those of the magistrate’s court.
19. The SCCA is a self-governing statute in terms of procedural law. It provides in its long title that it is “ an Act of Parliament to establish Small Claims Court; to provide for the jurisdiction and procedures of the Court and for connected purposes.” Under the court’s guiding principles, section 3(3)(c) and (d) enjoin the court to adopt such procedures as the Court deems appropriate to ensure (c)fairness of process; and (d)simplicity of procedure. Under section 17 of the Act the court is granted the discretion to control its own procedure in conformity with the Act in the determination of claims before it. In the exercise of that discretion, the Court is obliged to have regard to the principles of natural justice. For me, these provisions are an indication that the court will only borrow from other procedural laws where it is expressly provided for under the Act.
20. An appeal to this court from the SCC is on points of law only as provided for under section 38 of the SCC Act . So, the first issue for this court to consider is whether the grounds of appeal raised by the appellant are on points of law only. The submissions by both learned counsels take the form of submissions before the magistrates’ court, urging this court to analyze and reassess the material on record and reach its own findings as is required under section 78 of the Civil Procedure Act (Cap. 21) Laws of Kenya. That is misplaced. From the provisions of the Act, it follows that this court cannot proceed with the case by way of a rehearing and re-evaluation of evidence as is the norm in other civil matters as provided for under the Civil Procedure Act and Rules which have limited application in proceedings before the SCC.
21. The Court of Appeal has provided guidance on how to proceed in an appeal based on point of law only in the case of Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR) where it stated that:
“Those points in an appeal of the kind before us, being from an election court’s decision, are further circumscribed by Section 85A of the Elections Act which limits appeals to the Court of Appeal to matters of law only. It is therefore quite strange and improper that each of the seventeen grounds, without exception, commences with a standard expression “the judge erred in fact and law” or “the learned Judge erred in law and in fact.” Clearly the drafters of the memorandum did not have the legal provision in active contemplation. Had they done so, they would have found that by invoking factual errors, they were inviting jurisdictional objections to their entire appeal.”
22. It follows from this decision that an appeal to this court from the SCC being on points of law only as provided for under section 38 of the SCC Act this court should not interfere with the findings of fact by the trial court unless the decision is bad in law and cannot be supported by the evidence tendered. On that issue the Court of Appeal in M’Riungu v. Republic [1983] KLR 455, held thus:
“where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”.
23. The appellate court may however interfere with the findings of the trial court where it is demonstrated that there was no evidence at all upon which such findings were based or that the evidence relied upon was of such a nature that no reasonable tribunal, properly addressing its mind on it, could have made such findings (see for instance Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] eKLR).
24. Another important feature of the SC is that under section 3(3) of the Act it is provided that the Court shall adopt such procedures as the Court deems appropriate to ensure inter alia the timely disposal of all proceedings before the Court using the least expensive method and simplicity of procedure.
25. Moreover, under Section 32 of the Act the strict evidentiary rules applicable in other courts are not wholly applied in the Small Claims Court. It is further provided that the Court may admit as evidence any oral or written testimony, record, or other material even though the same is not admissible as evidence in any other Court under the law of evidence (Emphasis and underlying supplied).
26. Considering these elements of the SCC it would appear to me that the manner of proof of a claim in a SCC is that of a reasonable person as per the appreciation of the material tendered to the Adjudicator who is seized of the matter properly applying her mind to the law and facts of the case having observed the rules of natural justice as provided for under the Act and not being held captive by the strictures of the magistrates’ court processes as laid down in the Civil Procedure Act (Cap. 21) Laws of Kenya and the Rules made thereunder and the Law of Evidence Act (Cap. 80) Laws of Kenya.
27. This is because the SCC Act exempts the court proceedings from the rigid application of the standards of evidence applicable in other court proceedings and permits the court to include as evidence any material that it deems credible or trustworthy. It is upon the Adjudicator to determine the material to rely upon. To this end, the method and style of the SCC has been referred to as “unceremonious” by Bruce Zucker and Monica Her in their seminal paper “ The People's Court Examined: A Legal and Empirical Analysis of the Small Claims Court System .” It is a court bereft of procedural technicalities. Thus, the case before a SCC is a claim and not a suit.
28. In the present case, the appellant was in the process of executing a decree of the SCC when the objection proceedings were filed by the 1 st respondent. As stated above, the appeal is basically on whether or not the learned Adjudicator correctly evaluated the application for objection to attachment, considered the rival positions presented by the parties and correctly applied the law in arriving at her decision.
29. The application is expressed to be brought under Order 22 rule 51(1) of the Civil Procedure Rules which provides as follows:
“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”
30. The said provision is applicable to the application herein by virtue of section 25(1) of the SCCA which provides that any order or decree of the Court shall be enforceable in accordance with the Civil Procedure Rules (Sub. Leg.).
31. In the case of Arun C Sharma v Ashana Raikundalia t/a A Raikundalia & Co Advocates & 2 others [2014] KEHC 2430 (KLR) the court held that the objector bears the burden of proving that he is entitled to or has legal or equitable interest on the whole or part of the attached property.
32. It is the 1 st respondent’s contention that at the time of attachment of the subject motor vehicle he had purchased the same from the 2 nd respondent for valuable consideration on 9 th January 2023.
33. The appellant on her part insists that there was no such sale and purchase of the vehicle as alleged since there is no evidence that valuable consideration passed from the 1 st respondent to the 2 nd respondent. That she was aware that the two were brothers and what they were thus acting in collusion in order to defeat the process of execution. She has cited the case of Obadha v Omoro [2022] KEHC 332 (KLR) were the High Court on appeal found that the transfer of a motor vehicle after proclamation had been done in execution of decree of the court, against the judgment debtor was an attempt to evade execution of lawful decree of the court and dismissed the appeal by the objector.
34. In the present case the objector’s contention before the SCC was that there was no proclamation issued before attachment and that the attached motor vehicle registration No. KCW 886P belonged to him and it was registered in his name and therefore the same was not available in execution to satisfy the decree against the 2 nd respondent.
35. The contention that the auctioneer had failed to ascertain ownership of the vehicle before attachment and that no proclamation had been issued were dispelled by the replying affidavit of the appellant and the auctioneer. Through the said affidavits, they together showed that the auctioneer had conducted a search of the particulars of the motor vehicle and obtained a copy of records from NTSA which showed that as at 4 th October 2023, the vehicle was registered in the name of Jack Kuria Njuguna, the 2 nd respondent herein/judgment debtor before te SCC and further attached a notice of proclamation dated 2 nd October 2023 issued by the auctioneer to the 2 nd respondent. The auctioneer deposed in his replying affidavit that he had served the proclamationnotice upon the 2 nd respondent’s driver of the said vehicle on 2 nd October 2023. There was no supplementary affidavit by the 1 st respondent/objector to challenge those depositions.
36. The conclusion therefore should be that a proper notice of proclamation was issued and that as at 4 th October 2023, the vehicle was registered in the name of Jack Kuria Njuguna, the 2 nd respondent herein who was the judgment debtor before the SCC.
37. The 1 st respondent alleged that the motor vehicle had been sold to him by the 2 nd respondent sometime on 9 th January 2023 and annexed an agreement for sale of the same date between himself and the 2 nd respondent herein. There was however no explanation why the transfer had not been registered as at 4 th October 2023, about nine months later when the search conducted by the appellant’s advocates showed that the vehicle was registered in the name of the 2 nd respondent herein/judgment debtor.
38. Section 8 of the Traffic Act (Cap. 403) Laws of Kenya provides that the person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle. The auctioneer was therefore correct to deem the vehicle as being owned by the 2 nd respondent herein/judgment debtor since he was the one in whose name the vehicle was registered at the time the execution process commenced.
39. In Precast Portal Structures v Kenya Pencil Company Ltd & 2 others [1993] KEHC 100 (KLR) it was held: -
“The objector must adduce evidence to show that at the date of the attachment he had a legal or equitable interest in the property. 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…
“The burden is on the objector to prove and establish his right to have attached property released from the attachment. On the evidential material before the court, a release from attachment may be made if the court is satisfied.
i) That the property was not when attached, held by the Judgment-Debtor for himself or by some other person in trust for the Judgment-Debtor, or.
ii) That the objector holds that property on his own account.
The court further observed that: -
“But where the court is satisfied that the property was, at the time of attachment, held by the Judgment Debtor as his own and not on account of any other person, or that it was held by some other person in trust for the Judgment-Debtor or that ownership has changed whereby the Judgement-Debtor has been divested of the property in order to evade execution on the change is tainted with fraud, the court shall dismiss the objection”
“The court takes into account the grounds of objections raised and the contentions of the respective parties to the objection proceedings. Any special features evident in the proceedings which throw light on the controversy must be regarded.”
40. The 1 st respondent’s contention is that having produced a copy of records showing that he was the registered owner of the vehicle then he had discharged the burden to prove that the same was not subject to attachment to satisfy the decree against the 2 nd respondent.
41. However, I am persuaded that the contention by the appellant that in the absence of evidence of any consideration passing from the 1 st respondent to the 2 nd respondent for the purchase of the said vehicle, the fact that no transfer had been effected as at the time the proclamation notice was issued and considering that the two were brothers, the alleged sale agreement between them dated 9 th January 2023 was a sham. It was a ploy prepared after the proclamation and intended to remove the said motor vehicle from the appellant’s reach in execution against the 2 nd respondent.
42. In the case of Precast Portal Structures (supra) the High court went further to state that the court should conduct an inquiry and ascertain matters which are material to reaching a decision as to whether the objection should be sustained and the execution stopped.
43. There is no indication that the learned Adjudicator conducted such an inquiry or even gave regard to the material in the affidavits before her sworn by the appellant. For instance, the appellant’s depositions that he had personal knowledge that the respondents were brothers was not contested but the learned Adjudicator does not appear to have given it any regard in her evaluation of the affidavit evidence. That contention was material to show that it was easy for the brothers to collude for the 1 st respondent herein to aid the 2 nd respondent to evade execution by alleging that the vehicle had been sold to him.
44. I find that considering the evidence before her, the learned Adjudicator failed to properly apply her mind to the same and arrived at a conclusion that cannot be found to have been reasonable in the circumstances even under the constitutive elements of the SCC in finding that the objection by the 1 st respondent had been proved on the standards of a reasonable tribunal properly directing its mind to the issues before it. On that basis, I find that the decision has to be disturbed.
45. Consequently, I find the appeal has merit and it succeeds. The order of the learned Adjudicator allowing the objection by the 1 st respondent is set aside and substituted with a finding that the respondent did not prove his objection on a reasonable standard before the SCC. The ruling of the learned Adjudicator dated 5 th January 2024 is hereby set aside and substituted with a ruling dismissing the objection by the 1 st respondent.
46. The costs of the appeal and the objection proceedings before the SCC are awarded to the appellant and to be paid by the 1 st respondent herein.
47. The orders issued herein on 7 th February 2024 restoring the subject vehicle registration number KCW 886P to the 1 st respondent are vacated and the 1 st respondent ordered to immediately hand over the motor vehicle registration number KCW 886P to the 3 rd respondent, Jeremiah Muchendu t/a Icon Auctioneers or any other auctioneer that may be appointed by the appellant at the auctioneer’s appointed yard within 48 hours of this order failure to which the 3 rd respondent or other auctioneer so appointed shall be at liberty to impound the same and proceed with the process of execution unless any and all outstanding amounts including costs arising from the decree of the SCC are settled or shown to have been settled.
48. Orders accordingly.
49. Dated signed, and delivered on the Virtual Platform, Microsoft Teams this 15 th day of July 2026
ANDAYI W. FRANCIS
JUDGE
In the presence of:
... for the Appellant.
... for the 1 st Respondent.
... for the 2 nd Respondent.
... for the 3 rd Respondent.
Ummu h/b for Amina: Court Assistant.
Note: This ruling has been uploaded to the CTS system for access by parties on the date causelisted.
ANDAYI W. FRANCIS
JUDGE
milimani HCCA No. e063/202413/scc_objection to attachment