Kenya - Attachment of Assets
Benjamin M. Musau
PDF from "Attachment of Assets"
Originally from Attachment of Assets
1. What is the general nature and effect of judicial measures available for plaintiffs to obtain provisional relief affecting property of debtors to obtain security for judgments to be obtained (“attachments”)? Freezing property in place? Placing it in the custody of a third party, such as a court official, sheriff or marshall?
A plaintiff has the option of applying to the court for a mareva injunction for freezing of the property in place. In addition, a party can apply for orders that the property be placed in the custody of the court depending on the nature of the property, that is, whether the property is moveable or immovable.
2. What is the form of the attachment? Injunction? Other kind of judicial order? Specify.
The attachment can be of property in enforcement of judgments and arbitral awards. The injunction to be applied for is the mareva injunction stated in answer to question 1 above.
3. What is the jurisdictional basis for an attachment? Is the presence of the debtor’s property a sufficient basis for an attachment to be obtained, assuming other requirements are satisfied? To what extent may attachments be used as a basis for obtaining personal jurisdiction over a debtor? To what extent are attachments or similar orders intended to have extraterritorial effect?
The jurisdictional basis for an attachment is to prevent obstruction of justice by the absconding by the defendant from the local limits of the jurisdiction of the court. Secondly the defendant if not checked can dispose of or remove the property form the local limits of the jurisdiction of the court. The basis is laid out in section 63 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya (the Act) and Order 39 rule 1 of the Civil Procedure Rules, 2010 (the Rules).