[1991] KEHC 34 (KLR)
The court found that the plaintiff's affidavit, which formed the basis of the application, failed to comply with Order XVIII rule 3 of the Civil Procedure Rules because it did not state the grounds for the deponent's belief that the defendant would leave the country. The court emphasized that affidavits relying on...
Source-derived case information.
- Citation
- [1991] KEHC 34 (KLR)
- Parties
- Plaintiff: Athman; Defendant: Formica
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 311 of 1991
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs
- Legal Topics
- Affidavit Requirements, Order Xviii Rule 3, Interlocutory Applications, Grounds for Belief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Athman
Plaintiff
Formica
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the plaintiff's affidavit in support of the application complies with Order XVIII rule 3 of the Civil Procedure Rules.
- 2 Whether the plaintiff has established sufficient grounds to warrant the orders sought against the defendant.
Ratio Decidendi
The court found that the plaintiff's affidavit, which formed the basis of the application, failed to comply with Order XVIII rule 3 of the Civil Procedure Rules because it did not state the grounds for the deponent's belief that the defendant would leave the country. The court emphasized that affidavits relying on information and belief must disclose the grounds for such belief, and failure to do so renders the affidavit insufficient. Since the plaintiff's main ground for the application was unsupported by admissible evidence, the court held that the plaintiff had not made out a case for the orders sought. The defendant's demonstration of ties to Kenya further undermined the plaintiff's...
Court Disposition
application dismissed with costs
Orders
- The plaintiff's application is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
9 paragraphs
Athman v Formica
REPUBLIC OF KENYA
High Court, at Mombasa May 31, 1991
Wambilyangah J
Civil Suit No. 311 of 1991
May 31, 1991, Wambilyangah J delivered the following Ruling.
The defendant has been able to demonstrate that he not only owns property in this country but that he is operating profitable business within the country in partnership with some reputable indigenous Kenyans. So that even if he is, admittedly, an Italian national he has no immediate prospects or any reason at the moment which will compel him to leave this country before this suit is determined. Nor has the plaintiff shown any. And this brings me to the affidavit filed in support of the application. Paragraphs 6, 7 and 8 of that affidavit are based on information and belief and grounds of the beliefs are not stated. That is an obvious breach of Order XVIII rule 3 of the civil Procedure Rules. In the case of J.L. Young Manufacturing Co. Ltd. 1900 & ch.753 at p.755 it was said as follows:-
“The truth is that the drawer of the affidavit thinks that he can obtain an improper advantage by putting in a statement on information and belief, and he rests his case upon that. I never pay the slightest attention myself to affidavits of that kind whether they be used on interlocutory application or on final ones, because the rule is perfectly general – that, when a deponent makes a statement on his information and belief, he must state the ground of that information and belief.”
The plaintiff utterly failed to state the ground for believing (as he depones in paragraph 6 of his affidavit) that “the defendant will most likely leave the country for unknown destinations.” And as this is his main g round for the application it follows that he has not made out the requisite case to warrant me to give him the prayers sought. I therefore dismiss the application with costs.