Davis & Shirtliff Ltd v Attorney-General [1978] KECA 1 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Scope of the judicial-process immunity in section 4(5) of the Government Proceedings Act
The immunity extends until the court broker actually pays over the proceeds of execution; completion of execution does not terminate the protection.
The appellant argued that once execution was complete the broker's function ceased and became merely administrative. The court rejected this, holding that the broker discharges responsibilities connected with the execution of judicial process throughout, so the Government remains immune for anything done or omitted by him in the meantime.
Whether the court, as principal of the court broker, is itself a 'person' protected by section 4(5)
The court broker was an agent of the court; his conversion is deemed the court's own act, and the court is a 'person' within section 4(5) by virtue of the definition in section 3(1) of the Interpretation and General Provisions Act.
Adopting Simpson J's finding, the court held the broker acted as the court's authorised agent in the course of its duty. Quite apart from the position that the court can do no wrong, the statutory definition of 'person' brings the court within the immunity, so no action lies against the Government.
Whether the execution was completed on receipt of the proceeds by the court broker (Law JA)
Yes - once the broker received the proceeds of sale they were money had and received on behalf of the judgment creditor and recoverable by him, so the execution was complete; but this was immaterial to the section 4(5) immunity.
Law JA distinguished Lord Denning MR's dictum in Re Overseas Aviation Engineering, made under section 325 of the English Companies Act 1948 which distinguishes actual from deemed completion; no such distinction was needed here. Since the broker held the proceeds for the creditor, the immunity applied regardless of completion.
Legal principles established
#- A court broker continues to discharge responsibilities connected with the execution of judicial process until he actually pays over the proceeds of execution, and during that period no proceedings lie against the Government under section 4(5) of the Government Proceedings Act.
- A tortious act by a court broker, as an authorised agent of the court, in the course of its duty, is deemed committed by the court itself, and the court is a 'person' within the meaning of section 4(5), so no action lies against the Government.
- Courts must be free from litigious harassment arising from the bona fide discharge of their responsibilities in connection with the execution of judicial process and the administration of justice generally.
Court orders
#- 1.Appeal dismissed with costs
- On appeal from
- High Court of Kenya
- Suit against the Attorney-General as representative of the Government of the Republic of Kenya (arising from High Court Civil Case 1101 of 1975)
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (Government Proceedings Act, section 4, being the substantive provision in issue)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Davis & Shirtliff Ltd v Attorney-General [1978] KECA 1 (KLR)", Case Analysis (1978). Court of Appeal, Nairobi (test case on section 4 of the Government Proceedings Act; suit arising from High Court Civil Case 1101 of 1975). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1978/1/eng@1978-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.