Atogo v Agricultural Finance Corporation & another

Court of Appeal at Nakuru  

  October 23, 1991

Hancox CJ, Masime JA & Omolo Ag JA

Civil Appeal No 165 of 1989

(Appeal from the judgment of the High Court at Eldoret (Aganyanya J)

dated 11th August 1989 in Civil case No 163 of 1987)

Civil Practice and Procedure – execution - attachment of debtor’s property – attachment of goods in default of payment - attachment done by brokers wrongfully instructed by person not entitled to attach – attachment done on the wrong party – consequence of wrongful attachment.

Tort – conversion – wrongful taking of another’s goods – motor vehicle - log-book conclusive evidence of ownership.

Under the instructions of the respondents, Regent Auctioneers seized a Datsun Pick-up vehicle belonging to the appellant. According to evidence tendered one Hawala said to be the step-brother to the appellant was a loaner to the respondents who had defaulted on his loans. A loans officer sent to inspect the stock on the loanee’s farm identified certain assets including the appellant’s pick-up. The appellant contended that it was the said Hawala who was the respondent’s loanee and not himself. It was argued on behalf of the respondent that both Hawala and the appellant knew that there was an impending attachment against Hawala and had cancelled the arrangement that the vehicle nominally belonged to the appellant so as to frustrate it.

Held:

1. The respondents were not in law entitled to attach the appellant’s vehicle and they were wrongfully instructed by the broker to do so.

2. The wrongful taking of another person’s goods constitutes the tort of conversion.

3. It is actionable trespass to wrongfully set in motion the law so that the wrong goods are seized or the wrong person is arrested.

4. It is actionable to set in motion a process of attachment without observing rules of ordinary prudence by ascertaining the true identity and ownership of the property to do seized with out the necessity for proof of express malice.

5. A log-book is evidence of ownership of the motor vehicle to which it relates unless the contrary is proved and ordinary prudence would dictate that the log book should at least be inspected.

6. Special damages are those ascertainable and quantifiable at the date of an action.

Appeal allowed.

Cases

1. Simiyu v Sinino [1985] KLR 683; [1982-88] 1 KAR 630

2. Sure & 9 others v Gesare Nyamaiko [1982-88] 1 KAR 1145

4. Mariga v Musila [1984] KLR 251; [1982-88] 1 KAR 507

4. Shabani v City Council of Nairobi [1985] KLR 516; [1982-88] 1 KAR 681

Statutes

1. Agricultural Finance Corporation Act (cap 323) sections 14(3), 19

2. Traffic Act (cap 403)

3. Judicature Act (cap 8) section 6