JOHN KIPKEMBOI SUM V. LAVINGTON SECURITY GUARDS LIMITED

JUDGMENT OF THE COURT

It was pointed out by this Court in the strongest possible terms in the case of Kuria Kanyoko t/a Amigos Bar and Restaurant v. Francis Kinuthia Nderu and Others (1988)2 KAR 126, that the power to attach before judgment must not be exercised lightly and only upon clear proof of the mischief aimed at by Order 38 rule 5 of the Civil Procedure Rules, namely, that the defendant is about to dispose of his property or to remove it from the jurisdiction with intent to obstruct or delay any decree that may be passed against him.

In this case there was no suggestion whatsoever by the respondent in the superior court that the appellant was either in the process of disposing of his property or removing it from the jurisdiction of the court with intent to obstruct or delay any decree that may be passed against him.

It is amazing that the learned Judge (Mbogholi Msaghah, J) proceeded to grant the order for attachment before judgment on the ground only that the appellant was a man…