Abubakar A.H. Mohamed v Ahmed Mohamed Said & 3 others [2019] KECA 393 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a bankruptcy trustee's appeal because the seized property belonged to third parties and an unlicensed agency had executed the warrant.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondents' challenge to the competency of the appeal, raised out of time, was properly before the Court
- 2.Whether the Court could adjudicate the validity and enforcement of the consent order dated 18th December 2013 given the scope of the notice of appeal
- 3.Whether the objectors proved that the attached properties did not belong to the 1st respondent (judgment debtor)
- 4.Whether the seizure warrant could lawfully be executed by Malindi Real Agency Ltd., which was not a licensed bailiff or auctioneer
Key legal issues
#Timeliness of challenge to competency of appeal
The respondents' competency challenge was defective because it was not raised within 30 days of service of the record of appeal, as required by the proviso to Rule 84 of the Court of Appeal Rules.
Rule 84 of the Court of Appeal Rules permits a challenge to an appeal's competency where an essential step has not been taken or has been taken out of time. However, the proviso mandates that such an application be made within thirty days of service of the notice of appeal or record of appeal. None of the respondents raised the objection within that period, rendering the objection defective. Further, a strike-out application on those grounds had been withdrawn by consent on 1st October 2018, so the issue could not be entertained again in submissions.
Scope of appeal delineated by the notice of appeal
The Court was confined to the subject of the impugned ruling of 27th October 2016 - whether the objections to the attached properties had merit - and could not determine the validity or enforcement of the consent order of 18th December 2013.
The notice of appeal filed on 31st October 2016 challenged only the ruling of 27th October 2016, which dealt with the objections to the attached properties. The validity and enforcement of the consent order were dealt with in a separate ruling of 23rd June 2017 which was not the subject of the appeal. Citing KRA v Doshi Iron Mongers, the Court held it lacked jurisdiction to consider issues falling outside the notice of appeal, since the other side is entitled to notice of the scope of the appeal.
Whether the attached properties belonged to the judgment debtor
The objectors proved that the building on Plot No. 4090 and Shukrani Café did not belong to the 1st respondent; the sale transactions were evidenced by registered agreements and corroborated by lease and permits.
The evidence showed the building was sold by the 1st respondent to his wife in 2008, then to a third party in 2010, and then to the 3rd respondent in 2013, each supported by registered sale agreements. The 3rd respondent's uncontroverted evidence showed he developed the building and leased it to the 2nd respondent, who operated the restaurant and held its business and health permits. The chain of transactions established that neither the building nor the café belonged to the 1st respondent, and there was no concealment of his property.
Lawful execution of a seizure warrant under the Bankruptcy Act
The seizure warrant could not lawfully be executed by Malindi Real Agency Ltd. because it was neither a bailiff nor an auctioneer; the learned Judge properly cancelled the warrant.
Section 2 of the (repealed) Bankruptcy Act defines a bailiff as a person charged with the execution of any process under the Act. Malindi Real Agency Ltd., which executed the warrant of seizure, was not a licensed bailiff or auctioneer but a debt-collecting agency. A court warrant must be issued to and executed by a licensed auctioneer duly appointed by the court, not by auctioneers' agents. Consequently, the learned Judge could not be faulted for allowing the objections and cancelling the warrant dated 14th July 2015.
Legal principles established
#- An application to strike out a notice of appeal or an appeal cannot be brought after the expiry of thirty days from the date of service of the notice of appeal or record of appeal; a challenge raised outside that window is defective.
- A notice of appeal delineates the scope of an appeal, and an appellate court has no jurisdiction to consider issues falling outside that notice.
- A warrant of seizure under the Bankruptcy Act must be executed by a licensed auctioneer duly appointed by the court, and not by the auctioneer's agents or debt collectors.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal are awarded to the 1st, 2nd and 3rd respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- Bankruptcy Cause No. 1 of 2010
- Jurisdiction invoked
- Appeal to the Court of Appeal under the Court of Appeal Rules against the ruling of the High Court in bankruptcy proceedings
Relief refused
#The appellant's prayer that the objection ruling of 27th October 2016 be set aside
The objectors proved their respective claims and the seizure warrant was not executed by a court-appointed licensed auctioneer
Adjudication of the validity and enforcement of the consent order dated 18th December 2013
The consent order was not the subject of the impugned ruling and fell outside the notice of appeal
Costs
Appeal dismissed with costs to the 1st, 2nd and 3rd respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Provided that an application to strike out a notice of appeal or an appeal shall not be brought after the expiry of thirty days from the date of service of the notice of appeal or record of appeal as the case may be.
The Notice of Appeal delineates the scope of the appeal of which the other side has notice … We have no jurisdiction to consider those issues that fall outside the notice of appeal before us.
Court warrant cannot be executed by auctioneer's agents. They have to be executed by a licensed auctioneer duly appointed by the court.
As a result, we find that the appeal herein lacks merit and is hereby dismissed with costs to the 1 st, 2 nd and 3rd respondents.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abubakar A.H. Mohamed v Ahmed Mohamed Said & 3 others [2019] KECA 393 (KLR)", Case Analysis (2019). Civil Appeal No. 4 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/393/eng@2019-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.