Kanyoko t/a Amigos Bar & Restaurant v Nderu & 2 others
Court of Appeal, at Nakuru
October 21, 1988
Nyarangi, Gachuhi & Apaloo JJA
Civil Appeal No 142 of 1987
(Appeal from a Ruling and Order of the High Court at Nakuru, Tunoi Ag J)
Civil Practice and Procedure – attachment before judgment – matters the court should consider before ordering such attachment – applicant acting mala fides and out of malice – court failing to consider alternative offer of security made by respondent – whether order of attachment proper - Civil Procedure Rules order XXXVIII rule 5.
The respondents/landlords brought an action in the High Court against the appellant/tenant claiming, among other relief, payment of the increased rent of the premises. The appellant denied that he had been served with the statutory notice of increase of rent.
The respondents moved the court under the Civil Procedure Rules order 38 rules 5 and 12 for attachment of the appellant’s property before judgment. The application was made ex parte and without notice to the appellant. In supporting the application, the 1st respondent swore that the he had been informed that the appellant was about to abscond and that he had disposed or removed a number of his properties. The attachment order was granted and executed.
Upon the appellant’s application, the order was set aside and the appellant proceeded to show cause why he should not furnish security. He swore that the information given by the 1st respondent was false and gave evidence to show that he was in a position to pay any judgment that could be given against him. The 1st respondent on the other hand re-iterated his information.
The court ordered the attachment of the moveable properties of the appellant and the payment by him of the broker’s charges.
1. The burden of showing that the appellant had disposed of his properties or removed them from the court’s jurisdiction or was about to abscond in either case with the object of defeating any decree that may be passed against him lay on the respondents.
2. The power to attach is not to be exercised lightly without proof of the mischief aimed and vague allegations are insufficient. The appellant’s allegations that the appellant was about to abscond were vague and there was no proof that the appellant was minded of committing the mischief of disposing his properties.
3. The facts deponed to by the appellant were weightier than the bare hearsay information related by the 1st respondent and on balance, the weight of the affidavit evidence tilted in the appellant’s favour. In any event, the appellant had offered to provide security, the sufficiency of which the judge failed to even consider.
4. An applicant for attachment before judgment must act bona fide. There was evidence that the respondent had acted unreasonably and maliciously in attaching the appellant’s property.
5. Courts should be extremely slow in ordering attachment of a defendant’s property before judgment not only because it is hardly consistent with justice to exact punishment but also because of the time-consuming process of the courts, the rights and liabilities of the parties may not be determined for a long time.
6. The attachment of the appellant’s property was wrongly granted and the respondent, not the appellant, was to be liable for the broker’s charges
1. Ndirangu v Abdallah  KLR 746
2. Mareva Compagnie Naviera v International Bulk Carriers  2 Lloyds Rep 509; 1 All ER 213
3. Lister & Co v Stubbs (1890) 45 Ch 1
4. Ndungu v Mbugua & another Civil Appeal No 112 of 1984 (unreported)
5. Meru Farmers Co-operative Union v Suleiman (No 2)  EA 442
Mulla on the Code of Civil Procedure 18th Edn
1. Landlord and Tenant (Shops, Hotels & Caterign Establishments) Act (cap 301) sections 2, 4
2. Civil Procedure Rules (cap 21 Sub Leg) order XXXVIII rules 5,12; order XXXIX
3. Code of Civil Procedure [India]