[1998] KECA 274 (KLR)
The Court of Appeal held that the High Court erred in granting an order for attachment before judgment in the absence of any evidence that the appellant was disposing of or removing his property with intent to obstruct or delay the execution of a decree. The mere assertion that the appellant was a 'man of straw' was...
Source-derived case information.
- Citation
- [1998] KECA 274 (KLR)
- Parties
- Appellant: John Kipkemboi Sum; Respondent: Lavington Security Guards Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 124 of 1998
- Procedural Posture
- Civil Appeal / Appeal From Ruling and Order of the High Court
- Outcome
- appeal allowed
- Judges
- RO Kwach, AB Shah
- Legal Topics
- Attachment Before Judgment, Order 38 Rule 5, Burden of Proof, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kipkemboi Sum
Appellant
Lavington Security Guards Limited
Respondent
Procedural Posture
Civil Appeal / Appeal From Ruling and Order of the High Court
Legal Issues
- 1 Whether the order for attachment before judgment was properly granted under Order 38 rule 5 of the Civil Procedure Rules.
- 2 Whether the respondent demonstrated that the appellant intended to dispose of or remove property to obstruct or delay any decree.
- 3 Whether being a 'man of straw' is sufficient ground for attachment before judgment.
Ratio Decidendi
The Court of Appeal held that the High Court erred in granting an order for attachment before judgment in the absence of any evidence that the appellant was disposing of or removing his property with intent to obstruct or delay the execution of a decree. The mere assertion that the appellant was a 'man of straw' was insufficient to justify such an order. The court reaffirmed that even the poorest litigant is entitled to a fair hearing and that attachment before judgment is a drastic remedy that must be exercised sparingly and only upon strict compliance with the requirements of Order 38 rule 5. Since the respondent failed to demonstrate the mischief contemplated by the rule, the order for...
Court Disposition
appeal allowed
Orders
- The appeal is allowed.
- All orders of the superior court made on 24th April, 1998 are set aside.
Full Case Text
Judgment text and source record
31 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: KWACH, TUNOI & SHAH, JJ.A)
CIVIL APPEAL NO. 124 OF 1998
BETWEEN
JOHN KIPKEMBOI SUM .................................. APPELLANT
AND
LAVINGTON SECURITY GUARDS LIMITED .................... RESPONDENT
(Appeal from the Ruling and,subsequent Order of the High Court of Kenya at Nairobi of (Hon. Mr. Justice A. Mbogholi Msaghah) dated the 24th, 1998
in
H.C.C.C NO. 696 OF 1998)
****************
JUDGMENT OF THE COURT
It was pointed out by this Court in the strongest possible terms in the case of Kuria Kanyoko t/a Amigos Bar & Restaurant v Francis Kinuthia Nderu and Others (1988)2 KAR 126, that the power to attach before judgment must not be exercised lightly and only upon clear proof of the mischief aimed at by Order 38 rule 5 of the Civil Procedure Rules, namely, that the defendant is about to dispose of his property or to remove it from the jurisdiction with intent to obstruct or delay any decree that may be passed against him.
In this case there was no suggestion whatsoever by the respondent in the superior court that the appellant was either in the process of disposing of his property or removing it from the jurisdiction of the court with intent to obstruct or delay any decree that may be passed against him.
It is amazing that the learned Judge (Mbogholi Msaghah, J) proceeded to grant the order for attachment before judgment on the ground only that the appellant was a man of straw. We are constrained to reaffirm that even the poorest citizen is entitled to have his day in court. It is quite wrong for any court to put fetters on the right of a defendant to be heard in his defence and an order for attachment before judgment, when wrongly made, may well abridge this right.
In an application under Order 38 rule 5, the onus of showing a plausible case for resisting the application can only shift to the defendant once the plaintiff has fully satisfied the requirements under the Order. That was not the case here.
For these reasons, we allow this appeal, set aside all the orders of the superior court made on 24th April, 1998 and substitute therefor an order dismissing with costs the respondent's application dated 25th March, 1998. The appellant will have the costs of this appeal.
Dated and delivered at Nairobi this 3rd day of December, 1998.
R. O. KWACH
.......................
JUDGE OF APPEAL
P. K. TUNOI
.........................
JUDGE OF APPEAL
A. B. SHAH
.........................
JUDGE OF APPEAL
I certify that this is a true
copy of the original.
DEPUTY REGISTRAR