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High CourtAllowedNot stated in the judgment text provided

Diamond Trust v Car and General

High Court of Kenya
23 March 1994
1,928 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a defence and confirmed that a vehicle on hire purchase cannot be auctioned to pay the hirer's debts.

What this practically means

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Executive summary

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Diamond Trust sued Car and General for Shs. 428,871/30 plus 26% interest, being the balance outstanding under a 1991 hire purchase agreement with Four Seasons over a Toyota pick-up (KAB 110M) that Car and General attached and auctioned in execution of a subordinate court decree against Four Seasons. The vehicle was attached despite Diamond Trust writing on 10th July 1992 asserting ownership and requesting release; Car and General's advocates asked for documentary proof on 14th July, but the vehicle was auctioned the very next day, 15th July 1992, on same-day advertisement in the Kenya Times. Car and General defended on the basis that Diamond Trust's own negligence - failure to terminate the hire purchase agreement, failure to institute proceedings, and a log book endorsement of Four Seasons as co-owner - caused the sale. Diamond Trust then applied under Order VI, rule 13 to strike out the defence. Wambilyangah J held that the installments were in arrears and that under clause 3 of the agreement Diamond Trust remained entitled to retake the vehicle, so Four Seasons had no saleable interest capable of attachment, applying Fatma Fatin v S.F. Dorbar and Halbury's Laws of England. The negligence defence was rejected on the authority of Farquharson Brothers v King & Co: a true owner's rights are not defeated by carelessness; on the facts, any fault lay with Car and General's advocate or the auctioneer. The defence was struck out as frivolous, vexatious and disclosing no triable issue, judgment was entered for the plaintiff as prayed, and the plaintiff received the costs of the application.

Key legal issues

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01

Whether the judgment debtor hirer had a saleable interest in the attached vehicle

Holding

No saleable interest existed; the attachment was unlawful because the owner was still entitled to retake possession under clause 3 of the hire purchase agreement.

Reasoning

The hire purchase installments were in arrears and a substantial amount remained outstanding, entitling Diamond Trust under clause 3 to seize and retake the vehicle once Four Seasons suffered a decree. Following Fatma Fatin and Halbury's Laws of England, a hirer whose interest has determined or is not saleable cannot have the chattel seized in execution.

p. 2
02

Whether Diamond Trust's alleged negligence furnished a defence

Holding

No; carelessness of the true owner does not prejudice its proprietary rights, and on the facts no blame attached to Diamond Trust at all.

Reasoning

Applying Farquharson Brothers v King & Co, the true owner's right is unaffected by carelessness. On the facts, Diamond Trust promptly notified Car and General of its ownership; Car and General never indicated it would proceed to sell, the vehicle was sold before documents were examined, and inadequate auction notice was given. Any fault lay with Car and General's advocate or the court broker.

p. 3
03

Whether the defence should be struck out under Order VI rule 13

Holding

The defence was frivolous and vexatious, disclosed no triable issue, and was struck out with judgment entered for the plaintiff as prayed.

Reasoning

The negligence defence was 'entirely untenable' and not bona fide; the attachment itself was unlawful. With no triable issue, the defence fell to be struck out and judgment entered for the claimed sum and interest as prayed in the plaint.

p. 3

Legal principles established

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  • Where a hire purchase agreement entitles the owner to retake the chattel upon the hirer suffering execution, the hirer acquires no saleable interest capable of attachment in execution of a decree.
  • The right of a true owner of a chattel is not defeated by his own carelessness in losing it, however gross.

Court orders

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  1. 1.Struck out the defence as frivolous, vexatious and disclosing no triable issue
  2. 2.Entered judgment for the plaintiff as prayed in the plaint
  3. 3.Awarded the plaintiff the costs of the application
Jurisdiction invoked
Original civil jurisdiction of the High Court; application under Order VI, rule 13 of the Civil Procedure Rules to strike out the defence

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, "Diamond Trust v Car and General", Case Analysis (1994). Not stated in the judgment text provided. Source: 

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