[2002] KEHC 595 (KLR)
The court found that the application for security for appearance could not succeed because the supporting affidavit was based solely on beliefs without stating the factual grounds for those beliefs, thereby offending Order 18 rule 3 of the Civil Procedure Rules. Additionally, the lapse of over three years since the...
Source-derived case information.
- Citation
- [2002] KEHC 595 (KLR)
- Parties
- Plaintiff: Benson Wanyonyi, Tom Serebi & 38 Others; Defendant: Narcol Aluminium Rolling Mills Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 185 of 1998
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application for Security for Appearance
- Outcome
- application dismissed with costs to the respondents
- Judges
- CA Otieno
- Legal Topics
- Security for Appearance, Affidavit Evidence, Burden of Proof, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Wanyonyi, Tom Serebi & 38 Others
Plaintiff
Narcol Aluminium Rolling Mills Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application for Security for Appearance
Legal Issues
- 1 Whether the plaintiffs have established sufficient grounds for the court to order the defendant's directors to provide security for their appearance.
- 2 Whether an affidavit based on beliefs without factual basis satisfies the requirements of the Civil Procedure Rules.
Ratio Decidendi
The court found that the application for security for appearance could not succeed because the supporting affidavit was based solely on beliefs without stating the factual grounds for those beliefs, thereby offending Order 18 rule 3 of the Civil Procedure Rules. Additionally, the lapse of over three years since the application was filed, without any evidence that the defendant's directors had left the jurisdiction or that the defendant's assets had been disposed of, further undermined the applicants' case. The court emphasized that such applications should not be made lightly, as they have the potential to unjustly tie down a party's finances on insufficient grounds. Consequently, the...
Court Disposition
application dismissed with costs to the respondents
Orders
- The application dated 17th May 1999 is dismissed.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO.185 OF 1998
BENSON WANYONYI,
TOM SEREBI & 38 OTHERS ……………………………… PLAINTIFFS
VERSUS
NARCOL ALUMINIUM ROLLING
MILLS LIMITED ………....……………..…………………. DEFENDANT
R U L I N G
The application dated 17th May 1999 and brought under Order 38 rules 1, 2, and 5 of the Civil Procedure Rules is seeking mainly that the Defendants’ Directors be arrested and brought to court to show cause why they should not provide security for their appearance to the satisfaction of the court. The Applicant wants them to provide security in the tune of KShs. 5,000,000/-. The grounds upon which the application is made are two, and these are that the defendant is about to close business and its directors leave jurisdiction of the court. Alternatively that the Defendants assets are about to be sold to a 3rd party. There is an affidavit in support of the same application which merely depones on beliefs without giving the reasons for the same beliefs and therefore, offends Order 18 r. 3 of the Civil Procedure Rules. The Respondents oppose the application on grounds that the application is frivolous, vexatious, scandalous and an abuse of the process of court, and that no grounds have been made to justify the granting of the orders sought. There are also two affidavits in reply.
In my humble opinion this application cannot succeed because First the affidavit in support of it as I have said is based on beliefs which are not supported by facts as to the grounds of the same beliefs. Second, the application was filed on 17th May 1999. We are now in September 2002, three years hence and the applicants cannot prove that the directors have all left the jurisdiction nor that the assets have been disposed off nor that the Defendants’ business is not going on. The application of this nature should not be made lightly. No party’s finances should be tied down on frivolous grounds or on mere beliefs. The application is dismissed. Costs to the Respondents.
Dated this 26th Day of September 2002.
J. W. ONYANGO OTIENO
JUDGE