[2012] KEHC 3900 (KLR)

[2012] KEHC 3900 (KLR)

The court found that the plaintiff had established that the defendant's movable assets could not be traced and that the only known asset was the subject immovable property. The defendant's claim of having sold the property was not substantiated by any third party claim from the alleged purchaser, and the only objector's claim had already been dismissed. The court held that, although Order 22 rule 18(1)(a) generally requires notice to show cause before execution if more than one year has elapsed since the decree, subrule (2) allows the court to dispense with such notice to prevent unreasonable delay or defeat of justice. Given the circumstances, including the risk of asset dissipation and...

Citation
[2012] KEHC 3900 (KLR)
Parties
Plaintiff: Dubai Bank Kenya Ltd; Defendant: Come-Cons Africa Ltd; Objector: Impak Holdings Co. Ltd
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
21 June 2012
Case Number
Civil Suit 68 of 2003
Procedural Posture
Civil Suit / Ruling on Notice of Motion for Attachment and Execution
Outcome
Plaintiff's application allowed in part; order for attachment of property granted; oral examination of directors declined as premature; costs awarded to plaintiff.
Judges
GV Odunga
Legal Topics
Execution of Decree, Attachment of Property, Notice to Show Cause, Third Party Claims, Oral Examination of Directors
Source Language
English
Civil Procedure Commercial and Corporate Execution of Decree Attachment of Property Notice to Show Cause Third Party Claims Oral Examination of Directors

Case Brief

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Parties

Dubai Bank Kenya Ltd

Plaintiff

Come-Cons Africa Ltd

Defendant

Impak Holdings Co. Ltd

Objector

Procedural Posture

Civil Suit / Ruling on Notice of Motion for Attachment and Execution

Legal Issues

  1. 1 Whether the plaintiff is entitled to an order for attachment of the defendant's immovable property to satisfy the decree.
  2. 2 Whether the plaintiff is required to issue a notice to show cause under Order 22 rule 18(1)(a) before execution.
  3. 3 Whether third party claims to the attached property bar execution at this stage.

Ratio Decidendi

The court found that the plaintiff had established that the defendant's movable assets could not be traced and that the only known asset was the subject immovable property. The defendant's claim of having sold the property was not substantiated by any third party claim from the alleged purchaser, and the only objector's claim had already been dismissed. The court held that, although Order 22 rule 18(1)(a) generally requires notice to show cause before execution if more than one year has elapsed since the decree, subrule (2) allows the court to dispense with such notice to prevent unreasonable delay or defeat of justice. Given the circumstances, including the risk of asset dissipation and...

Court Disposition

Plaintiff's application allowed in part; order for attachment of property granted; oral examination of directors declined as premature; costs awarded to plaintiff.

Orders

  • Order for attachment of LR No. 209/8381/2 (IR. 48604) in execution of the decree issued on 25/8/2011.
  • Costs of the application awarded to the plaintiff.