Kanyoko t/a Amigos Bar & Resturant v Nderu & 2 others [1988] KECA 85 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed landlords cannot freeze a business's assets before judgment without solid proof the debtor plans to dodge paying.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Judge misapprehended the purpose of attachment before judgment
- 2.Whether the Judge misdirected himself on the standard of proof required for attachment before judgment
- 3.Whether the ex-parte attachment order of September 16, 1987 ought to be set aside
- 4.Who should bear the Court Brokers' charges arising from the attachments
Key legal issues
#Standard of proof and purpose of attachment before judgment
The Judge misdirected himself; a plaintiff does not get an automatic attachment by showing a prima facie case, but must prove the defendant intends to defeat execution
The Judge treated the purpose of attachment before judgment as ensuring the defendant could honour any decree. That would entitle any plaintiff to automatic attachment on showing a prima facie case. The true criterion is the respondents' plea that the appellant was about to abscond or had alienated property to defeat execution. The appellant's affidavit evidence outweighed the respondents' bare hearsay, and the burden lay on the respondents, discharged only by testing the rival averments with conventional evidence.
Effect of the defendant's offer of security
Where a defendant offers security, the Court must inquire into its sufficiency before issuing a final order of attachment; the Judge failed to do so
The appellant offered in his chamber summons to provide security and sought directions; that direction was never given. Mulla's commentary states the contemplated order is one calling on the defendant to furnish security or show cause, and where security is offered the Court should assess its sufficiency before final attachment. The Judge made no inquiry into the value of the appellant's landed property or title deeds.
Bona fides and malice of the attachment applicant
The attachment was maliciously sought; a clearer case of malice can hardly be imagined, which independently condemns the order
Unrebutted evidence showed the respondents filed the attachment application a day before the plaint, closed down the appellant's business, and wrote to the Liquor Licensing Authority to withhold the appellant's licence while litigation was pending. This showed the object was to punish the appellant and get him out of the premises rather than to protect any decree.
Excessive brokers' charges as abuse of court process
Charges accruing from a wrongful attachment may far exceed the claim; courts must be slow to order attachment before judgment and should relieve against such unnecessary expense
Estimated charges of over one million shillings to secure a claim of Kshs 206,400 made no sense. Relying on Ndungu v Mbugua and Meru Farmers Co-operative Union v Suleiman, the Court held litigants must not heap unnecessary charges on the other side, and courts should be zealous to prevent unnecessary expense. The respondents, having procured the wrongful orders, must foot the brokers' bills.
Legal principles established
#- Attachment before judgment requires proof, not vague or hearsay allegations, that the defendant is about to abscond or dispose of assets to defeat a decree; the proper order is one calling for security or cause, not unconditional attachment
- The burden of justifying attachment before judgment lies on the applicant and, where affidavits conflict, it can only be discharged by oral evidence
- The purpose of Order 38 rule 5 is to prevent a decree from being rendered infructuous, not to guarantee satisfaction of every decree
- A litigant must not use court process to the extent of punishment by heaping unnecessary charges on the other side; courts have discretion to grant relief against such abuse
Court orders
#- 1.The attachment before judgment made by Tunoi J on September 16, 1987 is set aside
- 2.The respondents must pay the Broker's charges and fees for the attachment under the ruling of September 16, 1987
- 3.The respondents must also pay the Broker's charges and fees incurred pursuant to the pre-judgment attachment made on August 15, 1987 by Masime J
- 4.The respondents to pay the appellant the taxed costs of the proceedings here and below
- 5.The appellant's right to compensation from the respondents for damages suffered from the wrongful attachments is left intact
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal against a ruling and order of the High Court (statutory appellate jurisdiction; no specific provision cited)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Our conclusion is, that the attachments before judgment made by Tunoi J on September 16, 1987 of the appellant's assets was ill-inspired and was made in error and should be set aside. And that the respondents must pay the Broker's charges and fees.
We would order the respondent to pay the appellant the taxed costs of the these proceedings here and below. We would leave intact the appellant's right to compensation from the respondents for any damages he may have suffered for these manifestly wrongful attachments.
Vague allegations are insufficient. The power to attach is not to be exercised lightly and without clear proof of the mischief aimed.
The object of this rule, is to prevent the decree that may be passed from being rendered infructuous. The order that is contemplated by this rule, is not an unconditional one directing attachment of property but one calling upon the defendant to furnish security or to show cause why security should not be furnished.
Issues in the judgment
#Internal inconsistency in the citation of Lister v Stubbs - the year is given as [1980] while the volume citation 45 Chd 4 corresponds to 1890
The judgment refers to the first attachment as made on August 15, 1987 by Masime J in the final orders, but earlier states the chamber summons came before Masime J on May 15, 1987 and the order was granted that very day
The property is referred to inconsistently as 'Tabogaon plot 44' and 'plot No 44 Tafuga' within the same judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kanyoko t/a Amigos Bar & Resturant v Nderu & 2 others [1988] KECA 85 (KLR)", Case Analysis (1988). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/85/eng@1988-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.