Hasham Jiva v Esmail Service Station

High Court, Nairobi 28th, 29th February; 3rd, 13rd, 15th March 1972;

Trevelyan J 11th 12th 14th October 1977

Lien - loss of lien - waiver - institution of proceedings to recover debt - whether institution of proceedings constitutes waiver of lien.

The right of action for debt and the right of lien over goods held for that debt are concurrent, and the mere assertion of a claim for the debt in legal proceedings does not constitute a waiver of the lien.

Stevenson v Blakelock (1813) I M&S 535 and Rederiactieselskabet

“Superior” v Dewar and Webb [1909] 2 KB 998, CA, applied.

Cases referred to in judgment:

Harji Karsan v Monjee Raghavjee (1943) 10 EACA 10.

Hill & Sons v London Central Markets Cold Storage Co Ltd (1910) 102 LT 715, 26 TLR 397.

Morris, Re [1908] 1 KB 473, CA.

Rederiactiselskabet “Superior” v Dewar and Webb [1909] 2 KB 998, CA.

Stevenson v Blakelock (1813) I M&S 535, 105 ER 200.

Taylor Stileman & Underwood, Re, ex parte Payne Collier [1891] 1 Ch 590, CA.

Application

Esmail Service Station, the defendant in Civil Case 258 of 1969, instituted by the plaintiff, Hasham Jiva, applied for leave to amend his defence. The facts are set out in the judgment.

DN Khanna and Mr Patel (instructed by Khanna & Co) for the Plaintiff. OP Nagpal and M Jeevanjee (instructed by Mr Jeevanjee) for the Defendant.

[Ruling] – BANKRUPTCY LAW – setting aside – application to set aside a receiving order made against the applicant – where he claims that the official receiver was acting fraudulently – proof of  - effect of – factors the court consider in such applications – validity of order