Order 39 allows the applicant to go to court to ask for the arrest of the defendant or the attachment of the property to preserve the property pending trial.  When one has a defendant who is not a resident of the country and may run away before the case is decided, you want to ask the case to preserve the status quo.  In UK there was no jurisdiction to attach property of defendant before judgment was issued.  The case of Lister v Stubbs [1890] 45 Ch. D1 and Kaish v Karageorgis (1975)1WLR 1093 Defendant could not be compelled to give security before the case was heard and determined.

In 1975 a case in the name of Mareva Compania v International Bulk Carriers SA [1980] All ER 2B.   

The plaintiffs were ship owners and the defendants were voyage charterers.  The defendants had received money from their sub charterers which money was deposited in a bank in London.  On the basis of those facts the court refused to consider itself bound by Lister v Stubbs which had held that a defendant could not be compelled to give security before judgment.  Relying on the wide discretion conferred by what is now Section 37 of Supreme Court Act 1981.  The court then hjeld that the plaintiff could be granted an injunction restraining the defendant from removing or desposing out of jurisdiction the monies held in the London bank.  This orders which were granted and which later become the mareva injunction has now been codified and is contained in Section 37 Order 31 of the Supreme Court Act.

The procedure is that one applies before the judge exparte – in UK it has been held that the order could be granted after judgment in aid of execution.   if one goes before the court for Mareva Injunction to issue, one
1.            Must have a cause of action justiciable in England
2.            Must have a good arguable case;
3.            The defendant must have assets within jurisdiction except for what has now been called worldwide Marevas which affect assets both in UK and abroad.
4.            There must be a real risk that the defendant may dispose off or dissipate those assets before assets can be enforced.

As a requirement secrecy is important and since it is meant to be swift and designed to prevent defendant from removing assets from jurisdiction.  There must be full and frank disclosure of the material facts by the applicant even those facts that are adverse to the plaintiff’s case.  where there is no disclosure the respondent is entitled to apply for a discharge.

If it is not appropriate case for a Mareva injunctions
Where the defendant has provided security as an alternative to the grant of the order against the defendant
Where the plaintiff is guilty of material non-disclosure
If there is material change of circumstances.

It is the duty of the plaintiff to disclose facts.

It may also act as auxiliary order and discovery of documents to enable the plaintiff to discover the whereabouts of the defendants assets, it can be granted as an auxiliary order.

Does Mareva apply in Kenya
Do courts have jurisdiction to grant Mareva
The best discussion of a Mareva Injunction is by J. Waki in the case of Murage v Mae Properties Ltd  H.C.C. 1269  of 2002 KLR

Order 39 sufficiently address the requirements of an applicant seeking a Mareva Injunction.  They are clear and sufficient to protect a plaintiff where there is threat that assets may be removed from jurisdiction.

Derby v Weldon (No 1) and No. 2) (1989)1 All ER 469 AND 1002 – circumstances under which a Mareva Injunction will issue.


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