David W.Ndirangu v Adijah Hassan Abdalla [1980] KECA 33 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that property cannot be attached before judgment unless the defendant is first given notice and a chance to respond.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the ex parte order of attachment before judgment of January 22, 1979 was lawful under order XXXVIII of the Civil Procedure Rules
- 2.Whether the judge was entitled to dismiss the appellant's application to set aside the attachment order
- 3.What relief should follow on appeal
Key legal issues
#Whether attachment before judgment may issue ex parte without calling on the defendant to show cause
No. Under order XXXVIII rules 5 and 6 the court must first be satisfied of intent to obstruct or delay execution, then direct the defendant to furnish security or show cause; only on default may attachment issue. The ex parte attachment was a nullity.
The rules prescribe a step-by-step procedure. The respondent's affidavit made bare averments on information believed without disclosing sources, insufficient to satisfy the court of intent to dispose of property. The judge ordered summary attachment without directing the defendant to furnish security or appear and show cause, in breach of rule 5, and without the defendant having failed to show cause as rule 6 requires.
Whether the order of January 22, 1979 should be set aside on the appellant's application
Yes. The learned judge's reasons for refusing to set aside the attachment were confused (mistaking plaintiff for defendant) and inapplicable; the illegal order should have been set aside once its irregularity was pointed out.
The judge twice confused the defendant with the plaintiff in his ruling, found that the plaintiff had not come to court with clean hands, and dismissed the application. The appellate court held this reasoning perpetuated the initial error and was totally inapplicable; the attachment of the vehicle was ordered set aside.
Legal principles established
#- A court may not order attachment before judgment unless first satisfied that the defendant intends to obstruct or delay execution of a decree, and the defendant must first be directed to furnish security or show cause.
- An attachment before judgment ordered without notice to the defendant and without the procedure of order XXXVIII rules 5 and 6 is a nullity.
- An affidavit averment on information and belief is of little evidential value where the source of the information is not disclosed.
Court orders
#- 1.Appeal allowed with costs to the appellant in this Court and in the court below
- 2.Attachment of Toyota vehicle registration No KDJ 643 set aside
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Lead judgment: the High Court judge erred in ordering attachment before judgment without first requiring the defendant to show cause under order XXXVIII rules 5 and 6; the initial attachment order was a nullity and the ruling dismissing the application to set it aside perpetuated that error. Appeal allowed with costs.
The learned judge was in error to order the summary attachment of the vehicle at first instance on the respondent’s application without calling upon and requiring the appellant to show cause.p. 2
Agreed the attachment was a nullity and the appeal should be allowed; noted the court's experience that attachment-before-judgment orders are frequently made without adherence to the Civil Procedure Rules, and that an affidavit on information believed with undisclosed source is of little evidential value.
It has been the melancholy experience of this court that orders for the attachment of a defendant’s property before trial of the cause are frequently made without proper adherence to the provisions of the Civil Procedure Rules.p. 2
Agreed with both judgments: the attachment of January 22, 1979 was a nullity because the defendant was given no opportunity to show cause under order XXXVIII rules 5 and 6; it should have been set aside on the application to set aside.
An order of attachment before judgment can only be made after notice to the defendant.p. 3
- On appeal from
- High Court
- Civil Suit No 5 of 1979
- Jurisdiction invoked
- Appeal from the High Court (first appellate/inherent jurisdiction of the Court of Appeal; provision not stated in the judgment)
Quotable passages
#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 would therefore allow this appeal with costs to the appellant here and in the court below, and order that the attachment of Toyota No KDJ 643 be set aside.
An order of attachment before judgment can only be made after notice to the defendant.
This the learned judge did not do and on this ground alone the order is a nullity.
Examination of order XXXVIII rules 5 and 6 shows that the court must move step by step.
Issues in the judgment
#The judgment does not state the names of the parties or the appellate case number; the parties are identified only by their roles in the High Court suit.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David W.Ndirangu v Adijah Hassan Abdalla [1980] KECA 33 (KLR)", Case Analysis (1980). Civil Appeal from Civil Suit No 5 of 1979 (High Court Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1980/33/eng@1980-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.