[1997] KEHC 10 (KLR)

REPUBLIC OF KENYA

IN HE HIGH COURT OF KENYA

AT MOMBASA

CIVIL SUIT 183 OF 1997

RAYMOND NAMOYA ……………………………………… .PLAINTIFF

Versus

THEO VERMEULEN ……………………………… 1ST DEFENDANT

DIAM DIVING & SAFARIS ………..…………………2ND DEFENDANT

RULING

The applicant, whom I shall refer to as the 1st defendantbrings in an-application by way of a chamber summons dated the11th of September 1997 for the following prayer under Order 38r. 1 & 5 and Section 3(a):-

"1. That the order for attachment of the first Defendant's properties dated the 5th September, 1997 be, hereby vacated.2. That costs be provided for

I shall refer to the respondent as the plaintiff. The 2nd defendant was never served with the said application. The relationship between the 1st and 2nd defendant was that the 1st defendant hast previously been a director of the company but has since sold his shares sometime this year.

In 1995, May 2nd, the plaintiff entered into an agreementwith the defendant No. 1 & 2 to purchase a motor boat when the Plaintiff - according to his plaint, took possession of the boat. The boat broke down the following day. The 1st defendant refused to make any repairs on grounds that there was no spare parts.

After being aware that the 1st defendant has sold hisequity in the 2nd defendant and may be returning to his homecountry, the plaintiff field suit on the 17th of June, 1997and prayed for orders that both defendants jointly andseverally for:-

(a) a declaration that the defendants are in fundamental Breach of contract and or orders for refund of the Purchase price.

b) special and general damages.

c) Interest on commercial rates & costs.

d) any order or further relief the court may deem fit and just."

Attachment before judgment of the 1st defendant'sproperties as under-

i) Two motor boats

a) MSHIKI ...........

b) ........

c) One motor vehicle Mercedes Benz Red Registration KAC 806S estimated cost KShs.600, 000/- lying at Diani.

iii) Banker Compressor "Mariner" estimated costs KShs.250 ,000/-.

d) ................

The orders granted by me were one of attachment of the 1stdefendants properties but limited to prayer (c) of theproperties. Namely the Mercedes Benz vehicle and of theBanker Compression "Mariner", both estimated at KShs.600,000,&KShs.250,000/- respectively.

The plaintiff was ordered to give an undertaking ofKShs.1,000,000/- in. the event the ex-parte orders wereerroneously obtained. These orders were issued on the 5thSeptember, 1997.

The 1st defendants after the properties were attached by 6th September, 1997 entered appearance.

The 2nd defendant entered appearance and defence on the7. 7.97 and 17. 7.97 respectively. The 1st defendant could notbe immediately traced. The plaintiff gave an applicationunder a certificate of urgency on 27th of August, 1997 statingthat the 2nd defendant was disposing his properties and wasabout to leave the country, This application was lateramended and the 4th of September, 1997.

It was brought under Section 3A of the Civil ProcedureAct and Order 38 rules l a (ii) rule 5(a) of the CivilProcedure Rules and prayed for the following orders-

"a) ...

b) That the court do issue a warrant to arrest the 1st defendant to appear in court and show cause why he should

This was a case whereby the two plaintiffs prayed andobtained orders for a warrant before judgment. The three wereformerly partners. The partnership ceased with the defendantleaving. The judge of the superior court issued a warrant ofarrest against, the defendant without there being any concisefacts before him.

The advocate for the plaintiff therefore agreed that inthis particular case there was insufficient information andfacts put to the Court to show that the defendant was about toleave, the country. This misled the court to issue the ordersgiven! As such the orders issued were unprocedurally wrongand ought to be vacated.

In reply the advocate for the plaintiff stated that the1st defendant’s properties are uncertain. The case law ofPortiqieter was correct and in agreement with him, namely thatthe court, before giving its orders must be satisfied with theevidence before it. That the 1st defendant arguments putforward was inadequate to set the judgment aside. What should at this stage is that the 1st defendant should provide security under Order 38 r 9 of the Civil ProcedureRules.

This was of course objected by the advocate for the 1stdefendant on grounds that rule 9 comes to play afterwards andnot now.

This was a case whereby the two plaintiffs prayed andobtained orders for a warrant before judgment. The three wereformerly partners. The partnership ceased with the defendantleaving. The "Judge of the superior court” issued a warrant ofarrest against the defendant without there being any concisefacts before him.

The advocate for the plaintiff therefore agreed that inthis particular case there was insufficient information andfacts put to the Court to show that the defendant was about toleave, the country. This misled the court to issue the ordersgiven. As such the orders issued were unprocedurally wrongand ought to be vacated.

In reply the advocate for the plaintiff stated that the1st defendants properties are uncertain. The case law ofPortiqieter was correct and in agreement with him, namely thatthe court, before giving its orders must be satisfied with theevidence before it. That the 1st defendant arguments putforward was inadequate to set the judgment aside. What should

............... At this stage is that the 1st defendant should provide security under Order 38 r 9 of the Civil ProcedureRules.

This was of course objected by the advocate for the 1stdefendant on grounds that rule 9 comes to play afterwards andnot now.

Should the orders for attachment be set aside andvacated?

The plaintiff has had attached out of the properties the Mercedes Benz motor vehicle registration No. KAC 806S estimated at the costs of KShs.600, 000/-. This was for the purpose of the defendant to show case why he should not provide security for his appearance.

When the attachment was made the defendant did showappearance and filed defence. The reasons for vacating theorders was mainly two. Namely that the orders were obtainedunprocedural and that the orders was unlawfully obtained - nosecurity has so far been offered.

Looking at the procedure under Order 38 of the CivilProcedure Rules, a plaintiff may apply for a warrant of arrestof the 1st defendant under rule 1 -

"where at any stage of a suit, other than a suit of the nature referred to in paragraphs (a) to (d) of section 12 of the act, the court is satisfied by affidavit or otherwise.

a) that the defendant with intent to delay the plaintiff, or to avoid any process of the court or its obstruct or delay the execution of any decree that may be passed against him.

i) .... ' - '

ii) ....

iii) has disposed of or removed from the local limits ofthe jurisdiction of the court his property or any partthereof; or

b) that the defendant is about to leave Kenya under circumstance affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed inthe execution of any decree that may be passed against ' the defendant in the suit;

the court may issue a warrant "to arrest the defendant andbring him before the court- to show cause why he shouldnot furnish security for his appearance.Provided that the defendant shall not be arrested if hepays to the officer entrusted with the execution of thewarrant any sum specified in the warrant as sufficient tosatisfy the plaintiff's claim and such sum shall be heldin deposit by the court until the suit is disposed of oras to order 38 r.. 5 of the Civil Procedure. rules whichreads -

Where at any stage of a suit the court is satisfied byaffidavit or otherwise, that the defendant, with intentto obstruct or delay the execution of any decree that maybe passed against him.

a) is about to dispose of the whole or any part of hisproperty' or

b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of thecourt, the court may direct the defendant, within a timeto be fixed, by it either to furnish security in such sumas may be specified in the order or produce and place atthe disposal of the court, when required the saidproperty or the value of the one or such portion thereof is to satisfy the decree or and appear and show cause why he should not furnish security.

The 1st defendant is an individual whilst the 2nddefendant is a limited liability company. The prayers thereinwere directed to the 1st defendant. Either to have himarrested before judgment or to have his property attached.

I granted the application to have the defendant No. 1'sproperties attached instead-of a warrant of arrest. Adequateevidence in both case was required. Twice the advocate forthe plaintiff was sent away by this court to supply adequateinformation before even the orders of attachment were issue.

I would agree with the Portqeiter case whereby the 1stdefendant relied on to support his argument. The said case isdistiquishable on the fact that the case dealt with thewarrant of arrest of the defendant. In this case no warrantof arrest was dealt with but simply the attachment of thedefendants properties. The plaintiff had not been encouragedto obtain orders of arrest.

Reference was made to the affidavits relied on by the Plaintiff as being here say and not reliable to grant orders of attachment of properties.

The defendant though in his affidavit for thisapplication states that he has bought another company - asproof that he still owns property in Mombasa, Kenya. He alsoadmitted that he frequently travels outside the jurisdictionof Kenya.

I would hereby rule that the court received adequate information as regards the 1st defendant including hisproperties. I rule that he still requires to provide securityfor his appearance. That the attachment herein be and ishereby to remain in force until such security is provided andor notice to show cause why he should not furnish security tothe plaintiff within 14 days of to-day's date.

I dismiss this application. I award costs to theplaintiff/respondent.

Dated this 29th day of' October, 1997 at Mombasa.

M. ANG'AWA

JUDGE29. 10. 97

last page not typed

10Coram:

Lady Justice Ang'awa

Advocate for the Plaintiff/Applicant/AppellantMr., Kabuki present.Plaintiff Present/Absent.

Advocate for the Defendant/Applicant/RespondentMr. Kassim present.Defendant Present/Absent.Court clerk - Sibiyia

Ruling read and delivered in open court this 29th Day ofOctober, 1997.

M. ANG'AWA

JUDGE

Mr. Kassim: I pray to appeal.Formal application be filed.

M. ANG'AWA

JUDGE

29. 10. 97