Capricorn Freights Forwarders Limited v Victor Omondi t/a First Impex & First Westlink [2015] KECA 465 (KLR)
The bottom line
#The Court of Appeal dismissed a freight company's bid to force a Kenyan trader to deposit security, confirming courts only grant relief that is expressly asked for.
What this practically means
#Executive summary
#Key legal issues
#Whether security could be granted on a prayer not expressly made
The Court cannot grant a substantive prayer for security anchored on the general prayer to make 'any order we may deem fit and just'; such orders must be in furtherance of the main order sought, and the applicant should have sought to amend the application
The Court held that the general rubric only supports orders ancillary to the principal prayer. A substantive Order 39 security application has a specific statutory basis under the Civil Procedure Act and must be moved expressly. The applicant abandoned the injunction prayer and then attempted to renew security through the catch-all, which was impermissible. This is a ratio on pleading and jurisdiction.
Whether the Court could grant Order 39 security under Rule 5(2)(b) of its rules
No. Rule 5(2)(b) permits only stay of execution, an injunction, or stay of proceedings - nothing else. Security under Order 39 cannot be granted under that rule, particularly where the applicant had abandoned the injunction prayer
Although the rule was not cited in the application, the Court found it was essentially brought under it. Since the prayers under Rule 5(2)(b) are clear and specific, the Court had no jurisdiction to grant an Order 39 security order through it. This is a binding ratio on the scope of the rule.
Whether the applicant made out a case for security
No. A large claim and apprehension that the appeal would be rendered nugatory are not grounds for security; the applicant failed to prove the respondent was disposing of assets or fleeing jurisdiction, and its Kenyan citizenship evidence stood unrebutted
The Court restated that the object of security is to protect the plaintiff against acts aimed at defeating execution - absconding, disposing of or removing property from the jurisdiction, or intending to flee. The plaintiff must show a prima facie unimpeachable cause of action and real, imminent danger that the defendant will put himself beyond the court's reach. Mere size of the claim is irrelevant; it belongs to stay applications. The respondent's Kenyan ID and passport rebutted the flight claim, and the application appeared designed to exert pressure rather than bona fide protection.
Whether the High Court's discretionary refusal should be disturbed
No. Whether to grant security is discretionary; Kasango J. exercised that discretion by refusing, and the applicant did not demonstrate the discretion was wrongly, capriciously or whimsically exercised
The Court affirmed the settled standard that an appellate court does not interfere with a trial judge's exercise of discretion merely because it would have decided differently; the applicant had to show the discretion miscarried. Having failed on both jurisdiction and merits, the application was dismissed with costs. This is a ratio restating the appellate standard for discretionary decisions.
Legal principles established
#- The catch-all prayer for 'any order deemed fit and just' cannot sustain a substantive relief different from the main prayer sought; the applicant should have amended the application, and cannot ride on the Court's general powers or the overriding objective
- Under Rule 5(2)(b) of the Court of Appeal Rules, the only prayers available are stay of execution, an injunction or stay of further proceedings - nothing else; security for due satisfaction of a decree under Order 39 cannot be granted under that rule
- An order for attachment before judgment/security requires clear proof that the defendant, with intent to obstruct or delay execution, is disposing of or removing property from the jurisdiction, absconding, or intending to flee; the plaintiff must first demonstrate a prima facie unimpeachable cause of action
- A substantial claim amount or the prospect of an appeal being rendered nugatory is not itself a ground for an order for security; such a submission is relevant only to a stay-of-execution application
- An appellate court will not interfere with a trial judge's exercise of discretion on security unless the discretion was exercised wrongly, capriciously or whimsically
Court orders
#- 1.The application is dismissed with costs to the respondent
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 26 of 2015
- Jurisdiction invoked
- Sections 4, 43, 47, 49 and 82 of the Appellate Jurisdiction Act; Rule 5(2)(b) of the Court of Appeal Rules; Sections 1A, 1B, 63(b) & (e) and 66 of the Civil Procedure Act; Orders 40 Rules 1 & 2 and 42 Rules 1 & 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Capricorn Freights Forwarders Limited v Victor Omondi t/a First Impex & First Westlink [2015] KECA 465 (KLR)", Case Analysis (2015). Civil Application No. 22 of 2015 (UR. 20/15). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/465/eng@2015-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.