Wakilii

Nambi v Lwanga (2) (Miscellaneous Application No. 213 of 2017)

High Court · [2017] UGHCEBD 9 · 2017 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for release of attached property in execution proceedings
Decision
Application allowed; attached vehicles released; execution set aside against Applicant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that motor vehicles jointly owned by the Applicant and Chase Bank (Kenya) Ltd must be released from attachment in execution proceedings where the Applicant was never a party to the underlying civil suit. The court found the Applicant had constructive possession of the vehicles on its own account and not on account of the judgment debtor. Execution set aside; judgment creditor not entitled to execute against a non-party to the original proceedings.

Outcome

Application allowed; attached vehicles released; execution set aside against Applicant

Facts

The Respondent obtained a judgment in Civil Suit No. 514 of 2013 against Buscar (U) Ltd. In execution proceedings (EMA No. 2033 of 2015), two motor vehicles registered as KCF 444Z and KCF 555Z were attached. The Applicant, Buscar East Africa Ltd, a Kenyan company incorporated on 27 June 2014 after the civil suit was filed, objected to the attachment. The Applicant claimed it jointly owned the vehicles with Chase Bank (Kenya) Ltd and had never been a party to the original suit. The log books showed joint ownership between the Applicant and Chase Bank (Kenya) Ltd. The Applicant operated a passenger interstate services business. The Respondent failed to file an affidavit in reply despite being given time and failed to appear at the final hearing.

Issues

  1. Whether the two motor vehicles KCF 444Z and KCF 555Z should be released from attachment.
  2. Whether the Applicant is entitled to the rest of the remedies sought including a declaration that the Respondent is not entitled to execute against it.

Orders

  • Execution set aside.
  • Motor vehicles KCF 444Z and KCF 555Z released from attachment.
  • Declaration issued that the Judgment Creditor/Respondent is not entitled to execute against the Applicant who was not a party to the proceedings out of which the execution arises.
  • Costs of the application and execution to be met by the Respondent.

Rules and key headnotes

Civil Procedure — Execution — Objection Proceedings — Scope of Investigation
In objection proceedings under Order 22 of the Civil Procedure Rules, the investigation the court conducts is restricted to the issue of who was in possession of the attached property on the date of attachment and not necessarily who has title over the property.
Civil Procedure — Execution — Objection Proceedings — Requirement to Plead Possession
An applicant objecting to attachment of property must plead possession in the affidavit supporting the objection application.
Civil Procedure — Execution — Possession on Own Account Distinguished from Possession for Judgment Debtor
What the court needs to investigate in objection proceedings is not ownership of the property being attached but whether the applicant was in possession of the attached property on his own account and not on account of the judgment debtor or some other person.
Civil Procedure — Execution — Execution Against Non-Party — Prohibition
A judgment creditor is not entitled to execute against a party who was never made a party to the proceedings out of which the execution arises, and such execution must be set aside under section 33 of the Judicature Act.
Civil Procedure — Inherent Powers — Prevention of Abuse of Process
Under section 98 of the Civil Procedure Act, the court has power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court, including releasing property from attachment where ownership and possession are established and execution would cause irreparable injury.

Legislation cited (8)

  • Civil Procedure Rules O.22 r.55(1)
  • Civil Procedure Rules O.22 r.56
  • Civil Procedure Rules O.22 r.55
  • Civil Procedure Rules O.52 r.1
  • Civil Procedure Rules O.52 r.3
  • Civil Procedure Rules O.22 r.51(1)
  • Civil Procedure Act s.98
  • Judicature Act s.33

Cases cited (3)

  • Kiwalabye v Uganda Commercial Bank & Another [1994] KLR 633
  • Joseph Mulenga v Photo Focus (U) Ltd [1996] KLR
  • Mineral Waters Ltd v Kampala Mineral Waters Ltd [1996] KLR 466

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Nambi v Lwanga (2) (Miscellaneous Application No. 213 of 2017) [2017] UGHCEBD 9 (9 March 2017)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.