[1998] KEHC 187 (KLR)
The court found that the plaintiff had demonstrated practical certainty of success in the suit based on documentary evidence such as invoices, sales receipts, statements, and cheques. The court further found that there was grave danger and real fear that the defendant may not honour any judgment, as evidenced by the...
Source-derived case information.
- Citation
- [1998] KEHC 187 (KLR)
- Parties
- Plaintiff: HACO Industries Kenya Ltd; Defendant: Mark Ademba Okumu; Defendant: Another
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 623 of 1998
- Procedural Posture
- Civil Case / Ruling on Chamber Summons for Security for Decree
- Outcome
- application for security for decree granted
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Security for Decree, Goods Sold and Delivered, Attachment of Property, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
HACO Industries Kenya Ltd
Plaintiff
Mark Ademba Okumu
Defendant
Another
Defendant
Procedural Posture
Civil Case / Ruling on Chamber Summons for Security for Decree
Legal Issues
- 1 Whether the plaintiff has demonstrated practical certainty of success in the suit to warrant an order for security for the decree.
- 2 Whether there is grave danger or real fear that the defendant may dispose of assets to defeat the fruits of judgment.
Ratio Decidendi
The court found that the plaintiff had demonstrated practical certainty of success in the suit based on documentary evidence such as invoices, sales receipts, statements, and cheques. The court further found that there was grave danger and real fear that the defendant may not honour any judgment, as evidenced by the defendant receiving Kshs. 3.5 million from a debtor but failing to remit any amount to the plaintiff. The court concluded that the only way to secure the plaintiff's interests was to order the provision of security by attaching the defendant's funds held in a bank account and at the Kibera Law Courts, to be held in an interest-earning account pending further orders.
Court Disposition
application for security for decree granted
Orders
- The sum of Kshs. 3,500,000 deposited in the defendant's account at Barclays Bank (K) Ltd. Muthaiga Branch is hereby attached.
- The sum of Kshs. 2,000,000 held by the Kibera Law Courts in respect of Criminal Case No. 1975 of 1997 on account of the defendant is also attached.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 623 OF 1998
HACO INDUSTRIES KENYA LTD.......................................PLAINTIFF
-versus-
MARK ADEMBA OKUMU & ANOTHER...........................PLAINTIFF
RULING
The plaintiff has filed a suit against the defendant claiming a sum of Kshs. 5,722,083/90 being the sum due and owing by the defendant to the plaintiff in respect of goods sold and delivered between 1996 and 1997.
The plaintiff has now moved the court by way of Chamber Summons under Order 38 Rule 5(1) (a) of the Civil Procedure Rules and section 3A of the Civil Procedure Act for an order that the defendant provides security for any decree that may be passed herein.
The application is supported by grounds stated therein and an affidavit sworn by Wamaitha Kangethe the plaintiffs company secretary. The same is opposed and there are grounds of opposition and a replying affidavit sworn by Mark Ademba Okumu - a defendant in the suit. both learned counsel have also addressed the court on the application.
The basis for granting an order for provision of security is the apprehension on the part of the applicant that the defendant may not be in a position to satisfy the decree that may be passed against him. The order is discretionary and the court is guided by affidavit evidence or otherwise.
The learned counsel for the defendant has citedBadri Prasad (objector) -v- Chokhe Lal (Applicant) Indian Law Reports - Allahabad series vol. 48 1926 p.510.
Dalal J. in that case said:
“ The plaintiff ought to be able to satisfy the court of the practical certainty of his success, and of the existence of grave danger, and of a real fear that a dishonest defendant, undoubtedly liable is making away with the probable fruits of the judgment.”
The plaintiffs case is backed by invoices, sales receipts, statements and cheques. There is a defence on record which was filed after the present application. The plaintiff’s claim is denied and if any money was ever due and payable the same was duly paid. It is a cannon principle that he who alleges must prove. The defendant has alleged payments. No receipts have been annexed.
I find that, as of now the plaintiff has shown practical certainty of success in the suit. I must now address the second limb of the test, whether or not the defendant is likely to make away with the probable fruits of the judgment.
Annexed to the application is a bundle of correspondence which points to some arrangement intended to accommodate the defendant not only on his indebtedness to the plaintiff but also on the recovery of some debts in which he was owed by others. It is clear to discern that the plaintiff’s counsel participated and was kept posted on the developments of that arrangement.
There is evidence that the defendant was paid a sum of Kshs. 3. 5 million by one of the debtors through his lawyers but not a single cent was passed over to the plaintiff on account of the present debt. That alone constitutes grave danger and real fear that the defendant may not honour his obligation to the plaintiff if it comes to be.
The only guarantee is to order provision of security which in the instant case I deem necessary. Accordingly, I find that the application succeeds. The following shall be the orders:
(a) The sum of Kshs. 3. 5 million deposited in the defendants account at Barclays Bank (K) Ltd. Muthaiga Branch is hereby attached.
(b) The sum of Kshs. 2,000,000/- held by the Kibera Law courts, in respect of Criminal Case No. 1975 of 1997 on account of the defendant is also attached.
The total sum of Kshs. 5,500,000/- shall be removed and banked into an interest earning account of both advocates appearing in this case until further orders of this court. The costs shall be in the cause. Orders accordingly.
Dated and delivered at Nairobi this 24th day of April, 1998.
A. MBOGHOLI MSAGHA
JUDGE