[2002] KEHC 705 (KLR)
The court found that the plaintiff had provided credible and uncontested evidence, through affidavit, that the defendant was about to dispose of his properties with the intention of defeating or delaying the satisfaction of any decree that may be passed against him. The defendant, despite being duly served, failed...
Source-derived case information.
- Citation
- [2002] KEHC 705 (KLR)
- Parties
- Plaintiff: Mombasa Maize Millers Limited; Defendant: Gabriel Ndungu t/a Gathima Store
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 265 of 2002
- Procedural Posture
- Civil Case / Interlocutory Application for Conditional Attachment Before Judgment
- Outcome
- Application granted as prayed. Conditional attachment order issued.
- Legal Topics
- Pre Judgment Attachment, Conditional Orders, Risk of Dissipation, Affidavit Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mombasa Maize Millers Limited
Plaintiff
Gabriel Ndungu t/a Gathima Store
Defendant
Procedural Posture
Civil Case / Interlocutory Application for Conditional Attachment Before Judgment
Legal Issues
- 1 Whether the plaintiff has established sufficient grounds for conditional attachment of the defendant's properties before judgment.
- 2 Whether the defendant's actions risk defeating or delaying the satisfaction of any decree that may be passed against him.
Ratio Decidendi
The court found that the plaintiff had provided credible and uncontested evidence, through affidavit, that the defendant was about to dispose of his properties with the intention of defeating or delaying the satisfaction of any decree that may be passed against him. The defendant, despite being duly served, failed to appear or contest the allegations. Given the risk that the plaintiff would be left with a pyrrhic victory if the properties were disposed of before judgment, the court determined that this was an appropriate case to grant a conditional attachment order under Order 38 Rule 5(1) of the Civil Procedure Rules. The court therefore ordered that the specified properties be placed at...
Court Disposition
Application granted as prayed. Conditional attachment order issued.
Orders
- The properties mentioned in Prayer 2 (three houses without land and the partially constructed building on Plot No. 281 Section I MN) are to be placed at the disposal of the court until this matter is heard and determined or until further orders.
- Neither the plaintiff nor the defendant is to dispose of any or all of the said properties until this case is heard and determined or until further orders of the court.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 265 OF 2002
MOMBASA MAIZE MILLERS LIMITED ………………………..….. PLAINTIFF
V E R S U S
GABRIEL NDUNGU T/A GATHIMA STORE ………......…………. DEFENDANT
RULING
This application is brought under Order 38 Rule 5 (1) of the Civil Procedure Rules. It is seeking only one main prayer and that is a prayer that the Defendant do place at the disposal of the Court, the three houses without land and the partially constructed building on Plot No. 281 Section I MN whose estimate value is Kshs. 1,550,000/- and court order conditional attachment of the same till further orders of this court.
The plaintiff is claiming Kshs. 2,039,200/- interest on the same amount at court rates from the date of filing the same Plaint until payment in full, costs and incidental to the suit. There is an Affidavit in support of the same Application sworn by the Manager of the Plaintiff Company. That Affidavit explains how the debt came about and there are annextures on the Affidavit. That Affidavit also states that the Defendant is about to dispose of all the properties he owns and if he is allowed to do so it will delay or defeat any decree that may be passed against him. I have also seen the Affidavit of Service sworn by the Court Process Server and what the same Process Server alleges to have seen when he went to serve the process. All these allegations have not been disputed by the Defendant who was duly served. He did not appear before the court at the time the matter was heard.
I do realise that courts need to be cautious in ordering attachment before hearing the entire case. However, this is a case where the Plaintiff may in the end gain no more than a pyrhic victory (should it win the case in the end) if the attachment is not allowed before judgment for it appears to me from the evidence before me that the Defendant may very well be disposing of his property as is being alleged and not disputed.
I do grant the application as prayed. The properties mentioned in Prayer 2 are to be placed at the disposal of the court till this matter is heard and determined or till further orders.
Neither the plaintiff nor the Defendant is to dispose of any and / or all of the same properties till this case is heard and determined or till further Orders of the court.
Orders accordingly.
Dated at Mombasa this 8th day of July, 2002.
J. W. ONYANGO OTIENO
JUDGE