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ELCDismissedNot stated in the extract· [2020] KEELC 609 (KLR)

Kayser Investment Limited v Bamburi Special Products Limited & 2 others [2020] KEELC 609 (KLR)

High Court of Kenya (court not expressly named in the judgment)
15 October 2020
LKL. Komingoi
1,980 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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If your property is being attached to enforce a court judgment in Kenya, you must file objection proceedings under Order 22, not start a fresh lawsuit.

What this practically means

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Executive summary

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The plaintiff, claiming a legal or equitable interest in LR No. 1/299 (original No. 1/42/6) along Argwings Kodhek Road, Nairobi, moved the court by notice of motion dated 13th December 2018 seeking a temporary injunction restraining the defendants from trespassing on, attaching, selling or otherwise interfering with the property. The plaintiff's case was that agents of the 2nd defendant auctioneers, instructed by the 3rd defendant advocates, visited the property and threatened attachment and sale to satisfy a decretal sum of Kshs. 8,128,571 said to be owed by the plaintiff to the 1st defendant in HCCC 431 and 432 of 2014, in which judgments had been delivered on 3rd May 2018. The defendants filed a preliminary objection and replying affidavits, contending that the proper remedy was objection proceedings in the existing execution matters and that the fresh suit was incompetent, sub judice-adjacent forum shopping and an abuse of process. The plaintiff later filed a further motion seeking to strike out the defence and have the suit proceed undefended, while the defendants sought leave to file their defence out of time. The court framed three issues: the injunction threshold, the preliminary objection, and costs. Applying Giella v Cassman Brown, it found the injunction application did not meet the threshold. Relying on Order 22 rules 51 and 52 of the Civil Procedure Rules, it held that a person objecting to attachment in execution must pursue objection proceedings, not a fresh suit, and that allowing the suit would cause multiplicity of suits. The preliminary objection was upheld, the application of 13th December 2018 and the entire suit were dismissed as incompetent and an abuse of process, with costs to the defendants. The remaining motions were not considered on the merits. Judgment was delivered in Nairobi on 15th October 2020 by L. Komingoi, Judge.

Key legal issues

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01

Whether the plaintiff's application for a temporary injunction met the Giella v Cassman Brown threshold

Holding

It did not; the application failed the threshold for a temporary injunction.

Reasoning

The court noted the existence of HCCC 431 and 432 of 2014 in which the 1st defendant had obtained judgments on 3rd May 2018 and which the plaintiff did not contest. The plaintiff's complaint was about threatened attachment in execution of those decrees. Applying the Giella v Cassman Brown principles, the court found the application did not meet the threshold for a temporary injunction and turned to the preliminary objection.

p. 3
02

Whether the preliminary objection was merited

Holding

It was; the suit and the application were incompetent and an abuse of the court process.

Reasoning

Order 22 rule 51 permits any person claiming an interest in attached property to give notice of objection to the court and the parties, with rule 52 providing for stay of execution pending the objection. The court held this was the proper procedure for the plaintiff, who claimed the suit property ought not to be attached in execution of the decrees in HCCC 431 and 432 of 2014, instead of instituting a fresh suit, which risked multiplicity of suits. The suit was accordingly dismissed.

p. 4
03

Costs

Holding

Costs of the application and the suit were awarded to the defendants.

Reasoning

Having dismissed the application and the entire suit on the preliminary objection, the court awarded costs to the defendants/respondents, following the ordinary rule that costs follow the event.

p. 4

Legal principles established

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  • A person claiming a legal or equitable interest in property attached in execution of a decree must pursue objection proceedings under Order 22 rules 51 and 52 of the Civil Procedure Rules rather than instituting a fresh suit; a fresh suit is incompetent and an abuse of process and may cause multiplicity of suits.

Court orders

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  1. 1.The notice of motion dated 13th December 2018 and the entire suit are dismissed with costs to the defendants/respondents.
  2. 2.It is so ordered.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure ActSection 3A
  • Civil Procedure Rules, 2010Order 40 Rule 1
  • Civil Procedure Rules, 2010Order 10 rules 3 and 11
  • Civil Procedure Rules, 2010Order 22 rules 51 and 52
  • Civil Procedure Rules, 2010Order 4 rule 1(4)

Cases cited (1)

  • Giella vs Cassman Brown
    [1973] EA 358
Jurisdiction invoked
Articles 40 and 159(2)(d) of the Constitution; Sections 3A and 3B of the Civil Procedure Act; Civil Procedure Rules, 2010 (Orders 22 and 40)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kayser Investment Limited v Bamburi Special Products Limited & 2 others [2020] KEELC 609 (KLR)", Case Analysis (2020). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/609/eng@2020-10-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.