[2014] KEHC 5982 (KLR)

[2014] KEHC 5982 (KLR)

The court found that the defendants failed to substantiate their claim of non-service, as the affidavit of service was uncontroverted and the process server was not cross-examined. Therefore, the application to set aside the attachment before judgment was dismissed. Regarding the 1st defendant's vehicle KBT 529P,...

Source-derived case information.

Citation
[2014] KEHC 5982 (KLR)
Parties
Plaintiff: Dataguard Distributors Limited; Defendant: Virginia Njeri Kigo; Defendant: Valz Distributors; Defendant: Vidi Fabricators Limited; Defendant: Nairobi Tyre Mart Company Limited; Interested Party: Jackson Waweru
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
11 March 2014
Case Number
Civil Suit 641 of 2012
Procedural Posture
Civil Suit / Ruling on Multiple Interlocutory Applications
Outcome
Applications disposed: Defendants' application dismissed; 1st Defendant's and Interested Party's applications allowed; Plaintiff's application allowed.
Judges
DO Ogembo
Legal Topics
Attachment Before Judgment, Service of Process, Security for Decree, Injunctive Relief, Review of Orders, Third Party Property Rights
Source Language
english
Civil Procedure Commercial and Corporate Attachment Before Judgment Service of Process Security for Decree Injunctive Relief Review of Orders Third Party Property Rights

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Summary, issues, holding and outcome

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Parties

Dataguard Distributors Limited

Plaintiff

Virginia Njeri Kigo

Defendant

Valz Distributors

Defendant

Vidi Fabricators Limited

Defendant

Nairobi Tyre Mart Company Limited

Defendant

Jackson Waweru

Interested Party

Procedural Posture

Civil Suit / Ruling on Multiple Interlocutory Applications

Legal Issues

  1. 1 Whether the defendants were properly served with court pleadings prior to the order for attachment before judgment.
  2. 2 Whether the goods and motor vehicles attached were lawfully subject to attachment under the orders of the court.
  3. 3 Whether the interested party's property was wrongfully attached and should be released.

Ratio Decidendi

The court found that the defendants failed to substantiate their claim of non-service, as the affidavit of service was uncontroverted and the process server was not cross-examined. Therefore, the application to set aside the attachment before judgment was dismissed. Regarding the 1st defendant's vehicle KBT 529P, the court held that it was not specified in the plaintiff's application or the court's order for attachment, and thus its attachment was improper; the application for its release was allowed. For the interested party, the court accepted documentary evidence of ownership of vehicle KBQ 019Q and found no basis for its attachment, ordering its unconditional release and awarding...

Court Disposition

Applications disposed: Defendants' application dismissed; 1st Defendant's and Interested Party's applications allowed; Plaintiff's application allowed.

Orders

  • The Notice of Motion application dated 20th December 2012 by the Defendants is dismissed with no order as to costs.
  • The Notice of Motion application dated 7th January 2013 by the 1st Defendant is allowed with no order as to costs; immediate and unconditional release of motor vehicle KBT 529P to the 1st Defendant.