[2012] KEHC 4834 (KLR)

[2012] KEHC 4834 (KLR)

The court found that the Plaintiff failed to meet the evidentiary threshold required under Order 39 (1) and (2) of the Civil Procedure Rules. The only evidence presented was the sale of a single property, which the court held was insufficient to demonstrate that the Defendant was about to abscond or remove all...

Source-derived case information.

Citation
[2012] KEHC 4834 (KLR)
Parties
Plaintiff: Stuart Ivan Kemp; Defendant: Adam Tuller
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
24 April 2012
Case Number
Civil Case 521 of 2010
Procedural Posture
Civil Case / Ruling on Chamber Summons for Security for Appearance
Outcome
application dismissed with costs to the respondent
Judges
DO Ogembo
Legal Topics
Security for Appearance, Order 39 Applications, Jurisdictional Risk, Loan Disputes
Source Language
english
Civil Procedure Commercial and Corporate Security for Appearance Order 39 Applications Jurisdictional Risk Loan Disputes

Source-derived case record

Summary, issues, holding and outcome

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Parties

Stuart Ivan Kemp

Plaintiff

Adam Tuller

Defendant

Procedural Posture

Civil Case / Ruling on Chamber Summons for Security for Appearance

Legal Issues

  1. 1 Whether the Defendant should be ordered to deposit Kshs.7,589,061 or other property as security for his attendance.
  2. 2 Whether the Plaintiff has provided sufficient evidence that the Defendant is about to abscond or dispose of property to defeat execution of a possible decree.

Ratio Decidendi

The court found that the Plaintiff failed to meet the evidentiary threshold required under Order 39 (1) and (2) of the Civil Procedure Rules. The only evidence presented was the sale of a single property, which the court held was insufficient to demonstrate that the Defendant was about to abscond or remove all property from the jurisdiction. The Defendant's status as a Kenyan citizen, his continued presence within the jurisdiction for two years after the application, and the lack of evidence of preparations to flee (such as seeking visas, liquidating assets, or releasing employees) further undermined the Plaintiff's apprehension. The court concluded that the Plaintiff's fears were...

Court Disposition

application dismissed with costs to the respondent

Orders

  • The Plaintiff's application for security for appearance is dismissed.
  • Costs of the application are awarded to the Defendant/Respondent.