Nakia J. White v Flame Tree Limited & 2 others [2014] KEELRC 1394 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Test for security before judgment
The applicant must establish a prima facie case and prove a real risk that the respondent will liquidate or remove assets from the court's jurisdiction.
The court set out a two-limb test: first, a prima facie case, which the Claimant satisfied by producing her employment contract and termination email, facts admitted in the 3rd Respondent's statement; second, proof that assets were being dissipated or removed from jurisdiction so that any decree would be unenforceable. The court found the second limb unproved.
Evidentiary sufficiency of allegations of asset dissipation and intended flight
Unverified allegations in an affidavit, without disclosure of the source of information, do not constitute proof.
The Claimant's affidavit alleged that the 3rd Respondent was selling and transferring the 2nd Respondent to a third party and planning to leave Kenya with his family, but no supporting evidence was tendered and no source of the information was disclosed, as required for matters deponed to from other sources. The allegations therefore could not support the drastic orders sought.
Constitutional rights against which security orders must be justified
Orders requiring deposit of money or surrender of a passport restrict the constitutional rights to protection of property and freedom of movement, and require justification on proved grounds.
The court invoked the constitutional guarantees of freedom of movement and protection of property, holding that before a court may deprive a person of the use of their property or restrict their movement by requiring a passport deposit, there must be justification founded on proved facts, not bare allegations.
Legal principles established
#- An applicant for security before judgment must demonstrate a prima facie case and prove that the respondent is likely to liquidate or remove assets from the court's jurisdiction
- Bare allegations in an affidavit, without proof or disclosure of the source of the deponent's information, cannot justify interfering with constitutional rights of freedom of movement and protection of property
Court orders
#- 1.The Claimant's notice of motion dated 4th August 2014 is dismissed
- 2.Costs will be in the cause
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Industrial Court (specific provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nakia J. White v Flame Tree Limited & 2 others [2014] KEELRC 1394 (KLR)", Case Analysis (2014). Cause No 1191 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1394/eng@2014-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.