Sure & 8 others v Nyamaiko (Civil Appeal 94 of 1986) [1988] KECA 103 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a judgment creditor who knowingly points a court broker at someone else's property must pay damages for wrongful attachment.
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 Deputy Registrar and the first appellate judge properly evaluated the individual evidence of each objector on the question of ownership of the attached property
- 2.Whether the geographical location of the attachment (Amariba or Matunwa village) was material to determining whether the correct property of the judgment debtors was attached
- 3.Whether the four cattle belonging to appellants 7 to 9 were wrongfully attached and whether they were entitled to the costs occasioned by that wrongful attachment
- 4.Whether the decree holder who knowingly misleads a court broker into attaching the wrong property is liable for trespass to goods
- 5.Whether the objection of appellant No 10, Silvanus Ogega, was properly dismissed
Key legal issues
#Duty of a first appellate court to re-evaluate evidence
The High Court judge's treatment of the objectors' evidence did not amount to sufficient re-evaluation, particularly where the Deputy Registrar had dealt with the objectors' evidence collectively rather than individually.
The Deputy Registrar dismissed the objectors' cases collectively as a fabricated village conspiracy without assessing each objector's credibility on the balance of probabilities. The High Court judge merely condoned this collective treatment and reached the same conclusion. Applying Peters v Sunday Post and Watt v Thomas, the Court held a first appellate court must re-evaluate the evidence of each objector, and since the trial tribunal had not done so the appeal could not stand on those findings.
Materiality of the location of attachment
The High Court judge erred in holding the geographical location of the attachment immaterial; the conflict as to location was central to ownership and credibility findings.
If the broker and decree holder went to a different place from the judgment debtors' premises and took property belonging to strangers, the attachment was wrongful regardless of the original debt. The evidence of the decree holder that the animals were found near the home of David Mayaka conflicted with the Deputy Registrar's finding of attachment at Matunwa village. Resolving this conflict was necessary before credibility and ownership findings could stand.
Liability for wrongful attachment of third parties' property
The decree holder who knowingly misleads the court broker into attaching property not belonging to the judgment debtor is liable for the damages occasioned; the four cattle of appellants 7 to 9 were wrongfully attached.
Following Blassio Simiyu v Vincent Wanjala Sinino and Morris v Salberg, the instigator of a wrongful attachment is liable in trespass to goods. The decree holder, Daniel Nyamau, admitted on oath that he knew four of the attached cattle did not belong to the judgment debtor and informed the court broker, yet the cattle were taken to Kisii. Malice was nearly established; at all events he knowingly misled the broker. The objectors 7 to 9 were entitled to the broker's charges of Kshs 710.
Protection of the court broker in execution
A court broker is protected in respect of acts executing a warrant of attachment under section 6 of the Judicature Act cap 8 provided they relate to the property of the person named in the warrant; but the decree holder's knowledge that the goods were wrongfully pointed out removed protection from the instigator.
In Blassio Simiyu this Court held the broker completely protected when executing against the property of the person named in the warrant, but the person who instigated the attachment of the wrong property was liable in damages for trespass. Here the broker was misled by the decree holder's own admission that he knew four cattle did not belong to the judgment debtor.
Rehearing of appellant No 10's objection
By majority, the dismissal of Silvanus Ogega's objection could not stand because the proceedings were confused by unclarified counsel concessions which the parties never accepted.
Counsel Mr Osoro conceded items 1 to 3 belonged to the judgment debtor, but Ogega and his wife gave evidence against those concessions and were never asked whether they accepted them. Counsel Mr Mainye failed to clarify the issues or address the court, and the trial court should have required clarification. The evidence of Ogega was accordingly rejected on an unsatisfactory basis and a rehearing was ordered.
Legal principles established
#- A court broker is completely protected in respect of acts done in executing a warrant of attachment provided they relate to the property of the person against whom the warrant was directed; but a decree holder who points out the wrong goods or directs the broker to the wrong property is liable in damages for trespass to goods.
- On a first appeal the appellate court must re-evaluate the evidence; where the trial tribunal failed to give individual treatment to each party's evidence, the first appellate court cannot simply adopt its collective findings.
- The location at which property is attached is material to determining whether the attachment was made in accordance with the warrant of attachment and to the credibility of the witnesses.
Court orders
#- 1.Appeals of appellants 7, 8 and 9 (Justus Matundura, Delilah Bosibori Tumbo, Gilbert Agecha) allowed; judgment of the High Court and the Ruling of the Deputy Registrar set aside and substituted with an order that the respondent pays them Kshs 710 jointly and severally
- 2.Appellants 7 to 9 awarded the costs of this appeal, of the High Court appeal and of the proceedings before the Deputy Registrar
- 3.Appeals of appellants 1 to 6 allowed and a new trial ordered before the Deputy Registrar for a proper assessment of their individual evidence
- 4.Appellants 1 to 6 awarded the costs of this appeal and the costs in the High Court; the costs of the objection proceedings to be costs in the event of the new trial
- 5.Appeal of appellant No 10, Silvanus Ogega, allowed and his case ordered to be reheard along with the cases of the first six appellants, with the same consequential orders
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the leading judgment. Found the Deputy Registrar failed to give individual treatment to the objectors' evidence and the first appellate judge failed adequately to re-evaluate it; held the location of the attachment was material; found the four cattle of appellants 7-9 were wrongfully attached with the decree holder's knowledge, entitling them to Kshs 710; would have dismissed appellant 10's appeal but deferred to the majority.
With the utmost respect, I cannot agree with the learned Judge's conclusion that the location of the attachment was immaterial, and on that ground alone I would be inclined to allow this appealp. 5
Wrote the judgment
Agreed with Hancox JA on appellants 1-9 and added costs orders; dissented on appellant 10, finding the proceedings against him unsatisfactory due to unclarified concessions by counsel and ordering a rehearing.
Lastly with great respect I would not dismiss the appeal in the case of the 10th appellant one Sylvanus Ogega. I would order his case to be reheard as well, for there is much confusion about it.p. 8
Wrote the judgment
Agreed with the draft judgments of Hancox and Platt JJA, setting out the resulting costs and retrial orders for objectors 1-6, 10 and 7-9.
I have read the draft judgments of Hancox and Platt JJA. I agree with the reasons therein stated that the appeal should be allowedp. 9
- On appeal from
- High Court of Kenya at Kisii
- arising from High Court Civil Appeal 47 of 1977 at Kisii and objection proceedings before the Deputy Registrar (Ruling dated 13 June 1984)
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over an appeal from the High Court (section 6 of the Judicature Act cap 8 referenced for the common law position; specific appellate provision not stated in the judgment)
Relief refused
#General damages for appellants 7 to 9 for the wrongful attachment of their four cattle
No claim for general damages was made in the objection proceedings and the court did not find it necessary to decide whether such a claim was possible under order 21 rule 60(2)
Upholding of the dismissal of the objection of appellant No 10 (as proposed by Hancox JA)
The majority (Platt and Gachuhi JJA) found the proceedings as against him unsatisfactory and ordered a rehearing
Costs
Appellants 7 to 9: costs of the appeal, the High Court appeal and the Deputy Registrar proceedings, plus Kshs 710 damages payable by the respondent jointly and severally. Appellants 1 to 6 and 10: costs of this appeal and the High Court; costs of the objection proceedings to be costs in the event of the new trial/retrial.
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.
In those circumstances it seems to me impossible to hold otherwise than that the four cattle belonging to the appellants 7 to 9 were wrongfully attached, that both the Court Broker and the decree holder knew this, and that these appellants are entitled to their reasonable costs occasioned by that wrongful attachment.
I would set aside the judgment of the High Court and the Ruling of the Deputy Registrar, and substitute therefor an order that the respondent pays them Kshs 710 jointly and severally.
I see no alternative but to order a new trial of the cases of appellants one to six, with a view to a proper assessment of their individual evidence.
For these reasons, the trial was unsatisfactory in the case of Sylvanus, and I would order a retrial along with the cases of the first six appellants with the same consequential orders.
The appeals of appellants one to ten are therefore allowed with the results I have stated. Orders accordingly.
by inserting in the application for execution the name of the wrong person, or by directing the Court Broker to the wrong house, or pointing out the wrong goods so that the Court Broker was misled into attaching the wrong property rendered the instigator liable in damages for trespass to goods.
Issues in the judgment
#Internal inconsistency in the identification of appellants 4, 5 and 6: Hancox JA refers to Japheth Gwonda as No 4 and Henry Ondieki as No 6, while Platt JA lists Japheth Gwonda as No 5 and Henry Ondieki as No 6.
Discrepancy in the number of cattle attached: the notices of objection mention seventeen cattle, the proclamation nineteen, and Platt JA states the proclamation lists twenty including a goat.
The citation of Blassio Simiyu appears both as '1985 3 KCA 211' and as 'Civil Appeal 108 of 1984, Vol 3 KCA 211' within the same judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sure & 8 others v Nyamaiko (Civil Appeal 94 of 1986) [1988] KECA 103 (KLR)", Case Analysis (1988). High Court Civil Appeal 47 of 1977 at Kisii (objectors' appeal to the Court of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/103/eng@1988-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.