Car & General (K) Limited v Diamond Trust of Kenya Limited [1995] KECA 153 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that selling attached property too quickly, in breach of the 15-day rule, leaves you with no defence and a costly judgment.
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 appellant had any triable defence to the respondent's claim after attaching and selling a vehicle owned by the respondent
- 2.Whether the High Court was right to strike out the appellant's defence under order 6 rule 13
- 3.What judgment sum and interest rate the High Court actually entered
Key legal issues
#Striking out a defence that discloses no reasonable defence
The High Court correctly struck out the appellant's defence as frivolous, vexatious and disclosing no triable issue where the appellant attached and sold a vehicle it had been told belonged to the respondent
The appellant levied attachment on a vehicle belonging to Diamond Trust but hired to Four Seasons Resort Ltd. The respondent immediately objected in writing; the appellant's own advocates then demanded proof of ownership, yet the vehicle was sold before that proof could be supplied. The sale breached order 21 rule 62's 15-day requirement. The court agreed with the judge that no blame attached to the respondent and no defence was open.
Rushing a sale to defeat a third party's claim
The conduct of the appellant in selling before ownership documents could be supplied indicated it was rushing the sale to defeat the respondent's claim
The handbill advertising the sale was dated 8th July 1992 and the vehicle was sold and advertised on 15th July 1992, before the ownership documents requested on 14th July could be provided. The court drew the inference that the appellant was hurrying the sale to pre-empt the respondent's objection, reinforcing the absence of any triable defence.
Legal principles established
#- A sale of attached movable property may not, without the written consent of the judgment debtor, take place before 15 days from the date the advertisement of sale is affixed in the precincts of the court
- Interest on a decretal sum is a matter for the discretion of the trial judge
- An alternative claim can only be awarded if the main claim has failed
Court orders
#- 1.Clarification that the judge entered judgment for the respondent in the sum of Shs 428,871/30 with interest thereon at 26% per annum as claimed in the plaint
- 2.Appeal dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- HCCC No 17 of 1993
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Constitution and the Appellate Jurisdiction Act (not expressly cited in the judgment)
Relief refused
#The appellant's appeal against the striking out of its defence and the ensuing decree
The attachment and sale of the respondent's vehicle was in flagrant violation of order 21 rule 62 and no triable defence existed
Costs
Appeal dismissed with costs to the respondent
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.
Otherwise this appeal fails and we order that it be and is hereby dismissed with costs to the respondent.
In the end, we would only clarify that the judge entered judgment for the respondent in the sum of Shs 428,871/30 with interest thereon at 26% per annum as claimed in the plaint.
In the face of this kind of evidence, we cannot see what possible defence was open to the appellant.
The sale was done in flagrant violation of order 21 rule 62 which requires that where movable property is attached and is to be sold, the sale shall not, without the written consent of the judgment debtor, take place before 15 days from the date on which the advertisement of the sale is affixed in the precincts of the court.
Issues in the judgment
#The judgment states the vehicle 'was sold on the 15th July, 1992' and 'was advertised for sale in the Kenya Times newspaper of the same day', while also stating the hand-bill advertising the sale 'was dated the 8th July, 1992' - the advertisement and sale dates are inconsistently recited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Car & General (K) Limited v Diamond Trust of Kenya Limited [1995] KECA 153 (KLR)", Case Analysis (1995). Civil Appeal No 159 of 1994. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/153/eng@1995-07-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.