1.Before Court is the Claimant’s application dated February 6, 2019, seeking that the court compels the Directors of the Respondent to place an attachment on debt before judgment.
2.The application is premised on the grounds that the Respondent is closing down shop, and had already closed down some of their branches such as the ones in Kisumu, Nakuru and two in Nairobi, and secondly, that they are about to leave the local limits of the jurisdiction of the court.
3.The Claimant fears that the Respondent are about to leave Kenya under circumstances affording reasonable probability that the Claimant/Applicant may be obstructed or delayed in execution of any decree that may be passed by this court against the Respondent.
4.The Respondent opposed the application vide a replying affidavit filed in court on March 14, 2019. The Respondent’s position is that she was only resizing and reorganizing her business to ensure profitability, and the allegations of winding up are untrue, and unfounded.
5.The Respondent avers that she is a company duly registered in Kenya and has an address in Nairobi where the Claimant served his pleadings and therefore the allegations that the Directors will flee the country are not true.
6.The application herein was filed on February 6, 2019, under certificate of urgency, the urgency being the grounds aforementioned. Today, it is three years down the line since the application was filed.
7.The application is brought pursuant to Order 23 Rule 1 and Orders 39 & 51 of the civil Procedure Rules. Order 39 rule 1 states:
8.The Court of Appeal in the case of Kuria Kanyoko t/a Amigos Bar and Restaurant Vs Francis Kinuthia Nderu & others (1988) 2KAR 126 had this to say on attachment before judgment:
9.From the foregoing, nothing justifies the prayers sought by the Claimant. Firstly, the instant application was filed three years ago together with the statement of claim in the matter. The Respondent has through counsel, continued participating in the suit, and therefore if the Respondent was ever planning to leave the country or the court’s jurisdiction, three years was enough time to have done so.
10.In my view, the Applicant has not proved that the Respondent's objective and main goal in re-sizing and reorganizing is to obstruct or delay any decree that may be passed against her.
11.I hold that the application lacks merit and is hereby dismissed.
12.The costs of the application shall abide the cause.