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ELCPartially AllowedKisumu ELC Appeal (from Kisumu CMC ELC No. E040 of 2021)· [2024] KEELC 190 (KLR)

Post Bank Credit Limited (in Liquidation v Victoria Distributors Limited (Environment and Land Appeal 1 of 2023) [2024] KEELC 190 (KLR)

Environment and Land Court (High Court), Kisumu
25 January 2024
6,806 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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A Kenyan court cannot order a company in liquidation to deposit money as security unless the claimant proves the company is actively hiding or removing its assets.

What this practically means

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Executive summary

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This was an appeal from the Chief Magistrate's Court at Kisumu, in which the trial court had ordered the Appellant, Chase Bank (in liquidation), to deposit Kshs. 18,239,140/- in court as security for the principal debt claimed by the Respondent, Sohanlal Associates Limited. The Respondent had bought the suit property at a public auction conducted by the Appellant's auctioneer for Kshs. 17,000,000/-, but was unable to take possession because Kenya Industrial Estates (KIE) claimed ownership and the Court of Appeal had issued restraining orders over the property. The Respondent sued for a refund of the purchase price plus disbursements and, apprehending that the Appellant's liquidation left it without effective recourse, sought security for the debt or a Mareva injunction freezing the Appellant's account, relying on Order 39 Rule 5 of the Civil Procedure Rules. The trial magistrate granted the deposit order on 7th July 2021. On appeal, S. Okong'o, J held that the jurisdiction to order security before judgment depends on proof that the defendant intends to obstruct or delay execution of a decree and is about to dispose of or remove property from the jurisdiction. The Respondent had only shown an arguable claim and the Appellant's liquidation, which are not grounds under Order 39 Rule 5. The trial court had misdirected itself on the applicable law and taken irrelevant matters into account. The appeal was allowed, the trial court's ruling and orders set aside, the Respondent's application dismissed, and the Appellant awarded costs of the appeal and the lower court application.

Key legal issues

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01

Conditions for granting security for deposit / Mareva relief under Order 39 Rule 5 of the Civil Procedure Rules, 2010

Holding

The lower court misdirected itself on the applicable conditions and took into account irrelevant matters; liquidation alone does not justify an order for security before judgment

Reasoning

Order 39 Rule 5 requires the applicant to show, by affidavit or otherwise, that the defendant intends to obstruct or delay execution of a decree and is about to dispose of or remove property from the jurisdiction. The respondent only established an arguable claim and the appellant's liquidation, which are insufficient. The power to attach or demand security must not be exercised lightly on vague allegations.

p. 12
02

Appellate interference with discretionary decisions of inferior courts

Holding

The lower court exercised its discretion wrongly and its decision warranted interference

Reasoning

Applying Mbogo v Shah, the appellate court may interfere where the lower court misdirected itself on the law or acted on irrelevant matters. Because the trial court applied the wrong legal test for security under Order 39 Rule 5, its discretion was exercised on a wrong principle, justifying setting aside the ruling.

p. 12

Legal principles established

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  • An appellate court will not interfere with the exercise of discretion by an inferior court unless satisfied that the decision is clearly wrong, misdirected itself, acted on matters it should not have, or failed to consider matters it should have.
  • Before an order under Order 39 Rule 5 is issued, the applicant must satisfy the court that the defendant, with intent to obstruct or delay execution of a decree, is about to dispose of or remove property from the jurisdiction; mere insolvency or liabilities exceeding assets is not a ground.

Court orders

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  1. 1.Appeal allowed as prayed
  2. 2.The ruling and orders made by the lower court on 7th July 2021 set aside
  3. 3.In place thereof, the Respondent's Notice of Motion application dated 6th April 2021 filed on 14th April 2021 in the lower court dismissed
  4. 4.Appellant awarded the costs of the appeal and the lower court application

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 39 Rule 5
  • Kenya Deposit Insurance ActSection 55(1), (2) and (3)

Cases cited (11)

  • Mareva Compania Naviera S.A. v International Bulkcarriers S.A
    [1975] 2 Lloyd's Rep. 509
  • Beta Healthcare International Limited v Grace Mumbi Githaiga & 2 Others
    [2016] eKLR
  • Capricorn Freights Forwarders Limited v Victor Omondi t/a First Impex & First Westlink
    [2015] eKLR
  • Gabriel Turic Dak v Eldoret College of Professional Studies & Another
    [2021] eKLR
  • LTI Kisii Safari Inns Limited & 2 Others v Deutsche Investigations-Und Enwicklungsgellschaft & 2 others
    [2011] eKLR
  • Kanduyi Holdings Limited v Balm Kenya Foundation & Another
    [2013] eKLR
  • International Air Transport Association & Another v Akarim Agencies Company Limited & 2 Others
    [2014] eKLR
  • Mbogo v Shah
    [1968] EA 93
  • Royalscapes Limited & 2 others v Nyaribo & another
    (Civil Suit E243 of 2021) [2022] KEHC 16803 (KLR)
  • Kanyoko t/a Amigos Bar & Resturant v Nderu & 2 others
    [1988] eKLR
  • Lister v Stubbs
    [1880], 45 Chd 4
On appeal from
Chief Magistrate's Court at Kisumu
Kisumu CMC ELC No. E040 of 2021
Jurisdiction invoked
First appeal to the High Court from the Chief Magistrate's Court under the Civil Procedure Act (appeal against an interlocutory ruling under Order 39 Rule 5, Civil Procedure Rules, 2010)

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, "Post Bank Credit Limited (in Liquidation v Victoria Distributors Limited (Environment and Land Appeal 1 of 2023) [2024] KEELC 190 (KLR)", Case Analysis (2024). Kisumu ELC Appeal (from Kisumu CMC ELC No. E040 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/190/eng@2024-01-25

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