[2004] KEHC 2692 (KLR)
The court found that the failure to file the notice of intention to proceed with attachment within the prescribed time was due to the mistake of the attaching creditor's former advocates. Upon taking over, the new advocates promptly filed the notice. The court held that such a mistake should not be visited on the...
Source-derived case information.
- Citation
- [2004] KEHC 2692 (KLR)
- Parties
- Plaintiff: Kenya Ports Authority; Defendant: Amarco (Kenya) Ltd.
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 23 of ??
- Procedural Posture
- Civil Case / Ruling on Interlocutory Applications Regarding Attachment of Goods
- Outcome
- Objector's application dismissed; attaching creditor's application allowed; notice of intention to proceed with attachment deemed filed in time; costs awarded to objector.
- Legal Topics
- Attachment of Goods, Extension of Time, Objector Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Ports Authority
Plaintiff
Amarco (Kenya) Ltd.
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Applications Regarding Attachment of Goods
Legal Issues
- 1 Whether the attachment of the objector's goods should be lifted for failure to file a notice of intention to proceed with attachment within the prescribed time.
- 2 Whether the attaching creditor should be granted an extension of time to file the notice of intention to proceed with attachment.
Ratio Decidendi
The court found that the failure to file the notice of intention to proceed with attachment within the prescribed time was due to the mistake of the attaching creditor's former advocates. Upon taking over, the new advocates promptly filed the notice. The court held that such a mistake should not be visited on the client, especially where the objector can be adequately compensated by costs. Therefore, the objector's application to lift the attachment was dismissed, and the attaching creditor's application for extension of time was allowed. The notice of intention to proceed with attachment was deemed to have been filed in time, with costs awarded to the objector for both applications.
Court Disposition
Objector's application dismissed; attaching creditor's application allowed; notice of intention to proceed with attachment deemed filed in time; costs awarded to objector.
Orders
- Objector's application to lift attachment is dismissed.
- Attaching creditor's application for extension of time is allowed.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASAKITALE
CIV CASE 23 OF 00
KENYA PORTS AUTHORITY …………………………. PLAINTIFF
- Versus -
AMARCO (KENYA) LTD. ……………………………… DEFENDANT
R U L I N G
Before me are two applications. The first one dated the 6th October 2003 is by the Objector seeking an order under Order 21 Rule 55 of raising the attachment of its goods as the attaching creditor had not filed a notice of intention to proceed with attachment. The second application dated 19th February 2004 is by the decree holder seeking, under Order 49 Rule 5, an order extending the time for filing the notice of intention to proceed with attachment. The applications were argued together.
Mrs. Maina for the Objector argued that the attaching creditors having failed to intimate in writing within the time allowed that it wished to proceed with the attachment, the same should be lifted. She submitted that the application by the attaching creditor for extention of time is an afterthought. Mr. Khagram for attaching creditor readily accepted that intimation to proceed with attachment was not filed in time. He blamed the failure on the attaching creditor’s former advocates.
I accept Mr. Khagram’s submission that the failure to intimate that the attaching creditor’s intention to proceed with the attachment was caused by the attaching creditor’s advocates. Immediately on taking over the conduct of this case on behalf of the attaching creditor Mr. Khagram’s firm filed the notice of intention to proceed with attachment. Counsel’s mistake should not be visited on the client. In this case I find that the Objector can adequately be compensated by way of costs. Consequently I dismiss the objector’s application and allow the one by the attaching creditor and order that the notice of intention to proceed with attachment filed herein on 1st December 2003 is hereby deemed as having been filed in time. The attaching however, creditor shall pay to the objector the costs of both the applications.
DATED this 24th day of March 2004.
D. K. MARAGA
Ag. JUDGE