Blassio Simiyu & another v Vincent Wanjala Sinino & another [1985] KECA 42 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a judgment creditor who misleads a court broker into seizing the wrong person's property must pay damages for trespass.
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 Respondent and his co-defendant were liable in trespass for the wrongful attachment of the Appellant's property when the attachment was carried out by a Court Broker
- 2.Whether the Court Broker's statutory/judicial protection (s 6 Judicature Act; Davis & Shirtliff) shields the execution creditor who misled him
- 3.Whether malice was a necessary ingredient of the action for trespass arising from wrongful execution
- 4.Whether the High Court was right to reverse the magistrate's award of damages
Key legal issues
#Liability in trespass for wrongfully setting execution in motion against a non-party's property
The Respondent, who inserted the Appellant's name in the application for execution and directed the Court Broker to the Appellant's premises, was liable in trespass for the wrongful attachment, without proof of malice.
Applying Morris v Salberg and Clissold v Cratchley, statements or acts that mislead the sheriff or Court Broker into seizing the wrong goods render the maker liable as if he had directed the seizure. Malice, essential to malicious prosecution or action on the case, is not required for trespass. The magistrate's finding of fact that the respondents set the attachment in motion was supported by evidence.
Effect of statutory protection of officers executing judicial process
The Court Broker executing a lawful warrant against the named person could not be sued (s 6 Judicature Act); but here there was no valid order or warrant, so the protection did not apply, and the persons who misled him were liable.
Davis & Shirtliff establishes the Government may not be sued for acts of persons executing judicial process and treats the Court Broker as the court's agent; but it does not exclude the execution creditor's liability. Since no order requiring refund existed and the warrant recited a non-existent decree, the process was not lawful, so both the Broker and those collaborating were liable if a tort resulted.
Nature of the cause of action and measure of liability
Trespass is actionable per se for direct interference with possession of chattels; liability on a joint and several decree is for the full amount.
Following Clerk & Lindsell, trespass compensates injury to a chattel in the plaintiff's possession and requires only direct interference with possession, without proof of actual damage. As the magistrate's decree was joint and several against both original defendants, the Respondent before the court bears the full award.
Legal principles established
#- A judgment creditor who misleads the officer executing process into seizing the wrong person's goods is liable in trespass, even without proof of malice.
- The protection of s 6 of the Judicature Act and Davis & Shirtliff attaches to the execution of a lawful warrant; a Court Broker acting without a lawful warrant or order is not protected, and parties who direct him are liable.
- A party intervening in execution who issues orders or directions to the execution officer, in consequence of which a wrongful act is done, makes the officer his agent and becomes liable.
Court orders
#- 1.Appeal allowed
- 2.Order of Gicheru J allowing the Respondent's first appeal set aside
- 3.Order of the magistrate awarding Kshs 10,000 general damages and Kshs 918.50 special damages restored against the Respondent (jointly and severally)
- 4.Costs of the appeal and of the proceedings in the High Court awarded to the Appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Agreed the appeal should be allowed on the terms proposed by Hancox JA; separately held the Court Broker had no authority absent a lawful warrant and that a party directing an execution officer makes the officer his agent (Sowell v Champion).
For the reasons stated I agree that this appeal should be allowed on the terms suggested in the judgment of Hancox JA which I had the advantage of reading in draft and I agree with the orders proposed therein.p. 7
Wrote the judgment
Concurred; added that under Luhya customary law only the father or guardian, not Dorcas, could sue for pregnancy damages or breach of promise of marriage.
Before writing this judgment I have had the advantage of seeing in draft the judgment of Hancox J A with which I agree. I would add only this. Even if the original suit was for damages for pregnancy, only the father or guardian of Dorcas would sue the man who had made her pregnant because the man is liable to pay a fixed amount by way of compensation to the father or guardian of Dorcas.p. 7
- On appeal from
- High Court of Kenya
- Kakamega HCCC No 9 of 1976 / appeal from Kakamega RMCC No 227 of 1979
- Jurisdiction invoked
- First appeal to the Court of Appeal against the decision of Gicheru J (High Court) on second appeal from the Resident Magistrate's Court
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 the appeal to this extent, set aside the order of the judge allowing the Respondent's first appeal, and restore the order of the magistrate awarding Kshs 10,000 general damages and Kshs 918.50 special damages as regards the Respondent.
I would award the costs of the appeal and the proceedings in the High Court to the Appellant.
if a person makes a statement that may well mislead, and does in fact mislead, the sheriff into thinking that he was directed to seize the goods seized, it seems to me that such a statement renders the maker of it liable as if he had intended to give such a direction.
No writ of execution can lawfully issue on a judgment that has been paid or satisfied before issue of the writ; there is no judgment left on which to base the writ, and the writ is void ab initio, and trespass will lie against the satisfied creditor and his solicitor who have put the sheriff in motion.
the Court Broker was not executing a lawful warrant or order or other process of the court and he and those (the respondent) collaborating with him were liable to be sued for their acts if they resulted into a tort.
Issues in the judgment
#The judgment cites Morris v Salberg with two inconsistent citations at different points.
The judgment gives conflicting accounts of the magistrate who ordered the attachment warrant (August 13 vs August 15, 1975, and inconsistent references to the trial court/file).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Blassio Simiyu & another v Vincent Wanjala Sinino & another [1985] KECA 42 (KLR)", Case Analysis (1985). Civil Appeal (from Kakamega HCCC No 9 of 1976; appeals in Kakamega RMCC No 227 of 1979). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/42/eng@1985-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.