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Court of AppealDismissedCourt of Appeal, Nairobi (test case on section 4 of the Government Proceedings Act; suit arising from High Court Civil Case 1101 of 1975)

Davis & Shirtliff Ltd v Attorney-General [1978] KECA 1 (KLR)

Court of Appeal of Kenya
14 December 1978
1,103 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This appeal, described as a test case, concerned the interpretation of section 4 of the Government Proceedings Act. The appellant, a judgment creditor, sued the Attorney-General for Shs 69,040/75 recovered on his behalf by a firm of court brokers, Mbaru Auctioneers and Official Brokers, which dishonestly converted the proceeds instead of paying them over or into court. The High Court (Simpson J) struck out the plaint as disclosing no reasonable cause of action, applying section 4(5), which bars proceedings against the Government in respect of anything done or omitted by a person discharging responsibilities connected with the execution of judicial process. The Court of Appeal dismissed the appeal. Madan JA rejected the appellant's argument that the broker's judicial-process responsibilities ended once execution was complete, holding that they continue until the broker actually pays over the proceeds. Further, adopting Simpson J's finding, the court held the broker to be an agent of the court, so his conversion was deemed the act of the court itself, and the court is a 'person' within section 4(5) by virtue of section 3(1) of the Interpretation and General Provisions Act. Law JA, concurring, wrote separately to hold that the execution was in fact complete upon the broker's receipt of the proceeds, distinguishing Lord Denning MR's dictum in Re Overseas Aviation Engineering (GB) Ltd, but this was immaterial to the immunity. Miller Ag JA agreed. The decision affirmed the decision below and established the binding scope of the Government's judicial-process immunity. The appellant was left to seek redress elsewhere, and costs were awarded against him.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the court broker's responsibilities 'in connection with the execution of judicial process' ended when execution was complete, so that the Government lost the protection of section 4(5) of the Government Proceedings Act thereafter
  2. 2.Whether the Government is exempt from liability under section 4(5) for the tortious conversion of execution proceeds by a court broker acting as agent of the court

Key legal issues

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01

Scope of the judicial-process immunity in section 4(5) of the Government Proceedings Act

Holding

The immunity extends until the court broker actually pays over the proceeds of execution; completion of execution does not terminate the protection.

Reasoning

The appellant argued that once execution was complete the broker's function ceased and became merely administrative. The court rejected this, holding that the broker discharges responsibilities connected with the execution of judicial process throughout, so the Government remains immune for anything done or omitted by him in the meantime.

p. 2
02

Whether the court, as principal of the court broker, is itself a 'person' protected by section 4(5)

Holding

The court broker was an agent of the court; his conversion is deemed the court's own act, and the court is a 'person' within section 4(5) by virtue of the definition in section 3(1) of the Interpretation and General Provisions Act.

Reasoning

Adopting Simpson J's finding, the court held the broker acted as the court's authorised agent in the course of its duty. Quite apart from the position that the court can do no wrong, the statutory definition of 'person' brings the court within the immunity, so no action lies against the Government.

p. 2
03

Whether the execution was completed on receipt of the proceeds by the court broker (Law JA)

Holding

Yes - once the broker received the proceeds of sale they were money had and received on behalf of the judgment creditor and recoverable by him, so the execution was complete; but this was immaterial to the section 4(5) immunity.

Reasoning

Law JA distinguished Lord Denning MR's dictum in Re Overseas Aviation Engineering, made under section 325 of the English Companies Act 1948 which distinguishes actual from deemed completion; no such distinction was needed here. Since the broker held the proceeds for the creditor, the immunity applied regardless of completion.

p. 2

Legal principles established

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  • A court broker continues to discharge responsibilities connected with the execution of judicial process until he actually pays over the proceeds of execution, and during that period no proceedings lie against the Government under section 4(5) of the Government Proceedings Act.
  • A tortious act by a court broker, as an authorised agent of the court, in the course of its duty, is deemed committed by the court itself, and the court is a 'person' within the meaning of section 4(5), so no action lies against the Government.
  • Courts must be free from litigious harassment arising from the bona fide discharge of their responsibilities in connection with the execution of judicial process and the administration of justice generally.

Court orders

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  1. 1.Appeal dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

concurring

Wrote the judgment

Agreed with Madan JA and the proposed order, but wrote separately on whether the execution had been completed, holding that once the court broker received the proceeds of sale the execution was complete, though this made no difference to the section 4(5) immunity.

Once he had received the proceeds of sale, the court broker held the money for and on behalf of the judgment creditor and was accountable to him for it.p. 2
majority
On appeal from
High Court of Kenya
Suit against the Attorney-General as representative of the Government of the Republic of Kenya (arising from High Court Civil Case 1101 of 1975)
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court (Government Proceedings Act, section 4, being the substantive provision in issue)

Relief refused

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Claim for Shs 69,040/75 as money had and received and/or for money converted by the Attorney-General's agent

Section 4(5) of the Government Proceedings Act bars proceedings against the Government in respect of anything done or omitted by a person discharging responsibilities in connection with the execution of judicial process, and the court broker was an agent of the court

p. 2

Costs

Appeal dismissed with costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I think that a court broker continues to function in the discharge of the responsibilities which he has in connection with the execution of judicial process until he actually pays over the proceeds of execution; and no proceedings lie against the Government in respect of anything done or omitted to be done by him meanwhile.
p. 2Scope of section 4(5) immunity - duration of broker's connection with judicial process
The tortious act of conversion of the money must be deemed to have been committed by the Court itself inasmuch as it was committed by an authorised agent of the Court in the course of its duty.
p. 2Court broker as agent of the court; vicarious attribution to the court
In order to function freely and effectively, Courts of justice must be free from harassment of litigious involvement arising from the bona fide discharge of their responsibilities, not only in connection with the execution of judicial process but generally in connection with their task of administering justice.
p. 2Rationale for judicial immunity
I would dismiss this appeal with costs. As Law JA and Miller Ag JA agree, it is so ordered.
p. 2Final orders - disposition

Issues in the judgment

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minor

Re Overseas Aviation Engineering (GB) Ltd is cited by the court (Law JA discussing Simpson J's reliance on Lord Denning MR's dictum) but is also attributable to Simpson J in the court below; treatment recorded as both distinguished by this court and cited by party below.

minor

The judgment does not print the name of the appellant or the High Court case number of the struck-out suit; only the execution suit (High Court Civil Case 1101 of 1975) is identified.

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, "Davis & Shirtliff Ltd v Attorney-General [1978] KECA 1 (KLR)", Case Analysis (1978). Court of Appeal, Nairobi (test case on section 4 of the Government Proceedings Act; suit arising from High Court Civil Case 1101 of 1975). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1978/1/eng@1978-12-14

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