Freezing a Kenyan Debtor’s Assets Before Judgment: Mareva Injunctions and Attachment Before Judgment

Winning a case against a Kenyan counterparty is only half the job; the other half is making sure there is something left to collect once judgment is entered. Kenyan civil procedure gives claimants two pre-judgment tools to stop a defendant from moving, hiding, or selling assets before trial: the interlocutory injunction, what common law lawyers elsewhere call a Mareva or freezing injunction, and attachment of property before judgment under Order 39 of the Civil Procedure Rules, 2010. They overlap in purpose but differ in legal test, procedure, and effect. This article explains both, how Kenyan courts actually apply them, and how a foreign claimant should choose between, or combine, them.

Two Tools for the Same Problem

A freezing injunction restrains the defendant personally from dealing with, removing, or dissipating assets; it does not seize anything itself, but disobedience is contempt of court. Attachment before judgment is more direct: the court orders specific property, often land, a bank account, or goods, physically or formally attached, so it cannot be sold or moved while the suit is pending. Both target the same mischief, a defendant about to place assets beyond the claimant’s reach, but they come from different procedural roots and Kenyan courts do not treat them as interchangeable.

The Freezing Injunction and the Giella Test

Kenyan courts do use the term “Mareva injunction,” and some High Court commercial rulings define it much as the English authorities do, as an order restraining a party from removing assets from the jurisdiction, or otherwise dealing with them, so a future judgment is not rendered ineffective. Procedurally, though, it is not a separate species of relief; an application to freeze assets is an ordinary application for a temporary injunction under Order 40, decided using the same three-limb test Kenyan courts apply to every interlocutory injunction, drawn from the East African Court of Appeal decision in Giella v Cassman Brown & Co Ltd [1973] EA 358. Under that test, an applicant must show, first, a prima facie case with a probability of success; second, that it is likely to suffer harm an award of damages could not adequately compensate if the injunction is refused; and third, that if the court is in doubt on the first two limbs, the balance of convenience favours granting the order. In the asset-freezing context, the second limb is usually satisfied by a real, evidenced risk that the defendant is about to dispose of, hide, or move assets so a judgment obtained later would be worthless to enforce; a bare assertion is not enough, and Kenyan courts have dismissed freezing applications where no concrete evidence of an intention to dissipate assets was produced.

Attachment of Property Before Judgment Under Order 39

Order 39 is a narrower, older mechanism aimed at a defendant who, with intent to obstruct or delay execution of any decree that may be passed, is about to dispose of or remove property from the court’s jurisdiction. On proof of this by affidavit or otherwise, the court may direct the defendant to furnish security for the value of the property, or the amount likely to satisfy the decree, and may order conditional attachment of the specified property at the same time it calls on the defendant to show cause. If the defendant fails to show cause or to put up the security ordered, the property is formally attached as in execution of a decree, and it stays attached, subject to third parties’ pre-existing rights, until security is furnished or the suit is dismissed. Attachment before judgment is squarely about protecting execution, not restraining conduct generally, so it suits cases where the target is a specific, identifiable asset, a parcel of land, a vehicle fleet, or funds in a named bank account, rather than the defendant’s dealings as a whole.

Choosing Between Them, and the Mechanics of Applying

The two remedies are not mutually exclusive; claimants often plead for both, or seek a general injunction while also asking for attachment of one or two specific, high-value assets they already know about. A freezing injunction is the more flexible choice: it can cover a whole class of assets, foreign as well as domestic in limited circumstances, without requiring the claimant to identify particular property in advance. Attachment before judgment suits cases where specific property has already been identified and the claimant wants it physically secured rather than relying on the defendant’s compliance with a court order.

Both can be sought ex parte, without notice to the defendant, where delay would defeat the order’s purpose, but the procedures diverge from there. Under Order 40 rule 4, an ex parte injunction can run for a maximum of fourteen days, extendable once, by consent or further court order, for another fourteen days; the applicant must serve the order, application, and pleadings on the defendant within three days of issue, and if service is not effected in time the injunction automatically lapses. Attachment before judgment under Order 39 is typically sought on an application calling on the defendant to show cause, though the court can direct conditional attachment of the property in the same order, pending that hearing. In both cases, Kenyan courts, following ordinary equitable practice, generally expect an applicant to be ready to give an undertaking to compensate the defendant in damages if the order later turns out to have been wrongly granted; this sits within the court’s discretion rather than a fixed precondition, so applicants should address it in their supporting affidavit rather than assume it will not be raised. Given the tight time limits, a foreign claimant should have its evidence of dissipation risk, and its Kenyan legal team, ready before filing, not after.