Athman v Formica
The bottom line
#A Kenyan court dismissed an attempt to restrain a foreign defendant from leaving Kenya because the plaintiff gave no proof for his claims that the defendant would flee.
What this practically means
#Executive summary
#Key legal issues
#Whether a claim that a defendant is likely to leave the jurisdiction can rest on statements on information and belief without stated grounds
No; such statements breach Order XVIII rule 3 and are given no weight, and where they are the main ground the application must fail
The court found paragraphs 6, 7 and 8 of the supporting affidavit were based on information and belief with no grounds stated, contrary to Order XVIII rule 3 of the Civil Procedure Rules. Citing J.L. Young Manufacturing Co. Ltd, the court held such affidavits deserve no attention. Since the belief that the defendant would leave the country was the main ground, the plaintiff failed to establish the requisite case.
Whether the defendant, an Italian national, was likely to leave Kenya before determination of the suit
No; the defendant demonstrated ownership of property and a profitable business in Kenya with reputable Kenyan partners, giving him no reason to leave
The defendant showed he owned property in Kenya and operated a profitable business in partnership with reputable indigenous Kenyans. The court concluded he had no immediate prospects or reason compelling him to leave before determination, and the plaintiff had shown none either, negating the risk that grounded the application.
Legal principles established
#- A deponent who makes a statement on information and belief must state the ground of that information and belief; otherwise the statement will be ignored
- Ownership of property and profitable business in Kenya indicates a foreign national has no reason to leave the jurisdiction before suit is determined
Court orders
#- 1.The plaintiff's application was dismissed with costs
- Jurisdiction invoked
- Original civil jurisdiction of the High Court (Civil Procedure Act and Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Athman v Formica", Case Analysis (1991). Civil Suit No. 311 of 1991. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.