[2008] KEHC 377 (KLR)
The court found that the plaintiff failed to prove any intention by the defendant to abscond or dispose of property as required under Order 38 Rule 1 of the Civil Procedure Code. The evidence showed the defendant is a resident of Kenya, with established ties including property, utility consumption, and children born...
Source-derived case information.
- Citation
- [2008] KEHC 377 (KLR)
- Parties
- Plaintiff: Hassan Mustafa; Defendant: Berti Berhane Hagos
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 381 of 2008
- Procedural Posture
- Civil Case / Ruling on Chamber Summons Application
- Outcome
- application dismissed with costs to the defendant
- Legal Topics
- Security for Appearance, Order 38 Applications, Dismissal of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hassan Mustafa
Plaintiff
Berti Berhane Hagos
Defendant
Procedural Posture
Civil Case / Ruling on Chamber Summons Application
Legal Issues
- 1 Whether the defendant should be ordered to provide security for her appearance under Order 38 Rule 1 of the Civil Procedure Code.
- 2 Whether the defendant intended to dispose of her property or abscond jurisdiction.
Ratio Decidendi
The court found that the plaintiff failed to prove any intention by the defendant to abscond or dispose of property as required under Order 38 Rule 1 of the Civil Procedure Code. The evidence showed the defendant is a resident of Kenya, with established ties including property, utility consumption, and children born and schooled in Kenya. The vehicle in question was not being removed from the jurisdiction but was engaged in regular business. Consequently, there were no grounds to warrant an order for security for appearance or other reliefs sought by the plaintiff. The application was therefore dismissed with costs to the defendant.
Court Disposition
application dismissed with costs to the defendant
Orders
- The application dated 30.10.2008 is dismissed with costs to the defendant/applicant.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
CIVIL CASE 381 OF 2008
HASSAN MUSTAFA……………………………………..………… PLAINTIFF
VERSUS
BERTI BERHANE HAGOS……....…………..…………………..DEFENDANT
RULING
Application dated 30. 10. 2008 by Chamber summons under order IXB Rule 8, XXXVVIII Rules 3 and 12 and Order 39 Rule 4.
This application dated 30. 10. 2008. The applicant submitted that no intention as envisaged under Order 38 Rule 1 has been proved and she is not disposing of her property indeed the vehicle (asset) which was to be arrested was on its normal transport business coming into Kenya when it was arrested.
The Police abstract showing a complaint filed in respect of the motor vehicle does not show that the vehicle was leaving the country. It was coming into Kenya. The Applicant has shown that she resides in Kenya and has premises on Plot No.209/13867 where she is a consumer of Electricity from Kenya Power & Lighting company.
Her children attend school in Kenya and were infact born in Kenya at Aga Khan Hospital in 1999 and 2001 respectively.
It is clear she is a resident of Kenya. She is a transporter of goods through Kenya to neighboring countries. On the other hand, the Plaintiff is a resident of Kampla outside jurisdiction of his court.
I have considered the arguments of both sides and requirement of the provision of Order 38 (1) Civil Procedure Code. I am satisfied that the Plaintiff has not proved that there are grounds to warrant Orders against the Defendant as to giving security for her appearance.
The necessary intention is not proved. On the other orders sought, the court must hear both parties before issuing orders and as there is no grounds shown the Application is dismissed with costs to the Defendant/Applicant.
It is so ordered.
DATED this 27th day of November, 2008.
JOYCE N. KHAMINWA
JUDGE