REPUBLIC
OF KENYA
IN
THE HIGH COURT AT NAIROBI
CIVIL
CASE NO. 123 OF 1999
IN
THE MATTER OF AN INTENDED ACTION
JOE BLOGGS
………………………………………..........INTENDED PLAINTIFF
VERSUS
SIMPLE SIMON
………………………………......INTENDED FIRST DEFENDANT
AND
XYZ BANK LTD.
..................................................INTENDED SECOND DEFENDANT
ORDER
UPON hearing counsel for the
plaintiff ex-parte and upon reading the affidavit of ………., sworn on the ………..
day of ……….., 1999, [and the exhibits thereto,] and upon the plaintiff by his
counsel undertaking:-
(1)
To abide by any order this court may make as to damages, in case the court
shall be hereafter of the opinion that the defendants should have sustained any
by reason of this order which the plaintiff ought to pay.
(2)
To indemnify any person [other than the defendants, their servants or agents]
to whom notice of this order is given, against any costs, expenses, fees or
liabilities reasonably incurred by them in seeking to comply with this order.
(3)
To serve upon the defendants as soon as is practicably possible, the plaint and
summons in this action, this order and the affidavit [together with the
exhibits thereto] specified above.
(4)
To notify the defendants as soon as practicably possible of the terms of this
order.
(5)
To notify and inform the defendants and any third parties upon whom notice of
this order is served at the time of service of their right, if so advised, to
apply on notice to this court for this order to be varied or discharged in so
far as this order affects the said parties.
(6)
To use any documents or information disclosed or obtained as a result of
executing this order only for the purposes of this intended action and not to
use such document or information for any other or collateral purpose whatsoever
without first obtaining the leave of the Court.
And
upon counsel for the plaintiff undertaking:-
(a)
That the person serving this order shall offer to the persons upon whom it is
served an explanation in everyday language as to the meaning and effect of this
order;
(b)
That they or the said persons serving this order shall inform the defendants of
his or their right to seek and obtain legal advice before complying with this
order provided that such advice is sought and obtained forthwith;
(c)
That any document, goods and articles obtained as a result of executing this
order shall be retained by them in their safe custody or control until further
order and not to use such documents or information for any other or collateral
purpose whatsoever except for the purposes of this action without first
obtaining the leave of the Court;
(d)
That any documents obtained as a result of this order in which the property or
copyright is not vested in the plaintiff shall be copied as soon as practicable
and returned to the defendants from whom they were taken; and
(e)
That an affidavit will be made and filed within seven (7) days of executing
this order stating fully the facts and circumstances of what happened in the
course of executing this order and exhibiting thereto a list of all the
documents, goods and articles obtained as a result of executing this order.
IT
IS ORDERED AND DIRECTED THAT:
1.
The defendants and each of them, whether by themselves or himself or by any
person appearing to be in charge of the premises hereinafter specified do
permit the person who shall serve this order upon them or any one of them,
together with such persons not being more than three (3) in number as may
be duly authorised by the plaintiff to enter forthwith the premises, [the part
or parts of the premises occupied and used by the defendants or any of them]
situated at or known as ..... and any other premises [such parts or parts
thereof occupied by the defendants or any of them] disclosed to the plaintiff
or his advocates pursuant to the following provisions of this order or
otherwise ascertained by the plaintiff as being premises occupied by the
defendant or any of them, together with any out-house or garage or other
building which forms part of the said premises and any motor vehicle owned or
used by the defendants or any of them at any hour between 8 o’clock in the
morning and 8 o’clock in the evening [on a weekday] for the purposes of
searching for, inspecting, copying, photographing and removing therefrom into
custody or control of the plaintiff’s advocates the following documents, goods
and articles, namely:-
(i)
All or any of the documents relating in any way to acquiring or purchasing or
supplying or offering to supply any infringing [illicit] goods and articles,
and such goods and articles themselves.
(ii)
2.
That each of the defendants whether by himself or by any person appearing to be
in charge of the said premises or vehicles do permit the plaintiff’s advocates
and their said representatives to carry out search, inspection, copying,
photographing and removing, and on request to open for such purposes any
cupboards, drawers, safes, containers, cases and vehicles on or upon the said
premises.
3.
That the defendants and each of them do forthwith disclose to the persons who
shall serve this order upon him or them the identity of all premises and their
addresses in which any of the documents, goods or articles specified
[described] in paragraph 1 hereof, are or have been stored [manufactured]
[packed].
4.
That the defendants and each one of them do within 24 hours of the service of
this order upon them or any of them deliver or cause to be delivered to the
custody of the plaintiff’s advocates all documents (save in so far as not
already taken into their custody) whose whereabouts they are required to
disclose under paragraph 3 hereof, and within a further period of 24 hours they
do swear an affidavit stating or confirming that all documents required to be
disclosed and if not, their whereabouts or what has happened to the same and
forthwith serve such affidavit upon the plaintiff’s advocates.
5.
[That the first and second defendants and the third defendants by their
secretary [other proper officer] do within 4 days of the service of this order
upon them answer by affidavit the interrogatories set forth in the Schedule to
this order.]
6.
(a)
That the defendants and each of them do disclose to the person who shall serve
this order upon them the names and addresses of all persons, companies or firms
responsible for supplying or offering to supply to them or to whom within their
knowledge they have supplied or offered to supply any infringing [illicit]
goods and articles, together with the dates and quantities of each supply or
offer to supply and all documents relating to such supply or offer to supply
and the names and addresses of all persons, firms and companies who are parties
of or associated with the defendants in relation to such supply;
(b)
That the defendants and each of them whether by themselves, their directors,
officers, servants or agents or any of them or otherwise howsoever be
restrained and injunctions hereby granted restraining them whether directly or
indirectly from informing any person, company or firm of the existence of these
proceedings or of the possession of this order or of the interest of the
plaintiff in these proceedings or otherwise naming any person, company or firm
that the proceedings may be brought against them by the plaintiff otherwise
than for the purpose of seeking legal advice from professional lawyers.
7.
That each of the defendants whether by himself or by any person appearing to be
in charge of the said premises do afford to the persons enforcing this order
all reasonable washing and toilet facilities available therein.
8.
That the defendants are to be at liberty to apply to this Court to discharge or
vary the order upon giving one (1) days notice to the plaintiff’s advocates of
their intention to do so.
9.
The costs of this application be reserved.
Given under my hand and the seal of the court this ………….. day of ……………………….,
1999.
…………………………………………………………
JUDGE
SCHEDULE
{as
per par 5 of this order, set out the interrogatories in numbered paragraphs}
REPUBLIC OF KENYA
IN
THE HIGH COURT AT NAIROBI
CIVIL
CASE NO. 123 OF 1999
IN
THE MATTER OF AN INTENDED ACTION
JOE BLOGGS
………………………………………..........INTENDED PLAINTIFF
VERSUS
SIMPLE SIMON
…………………………………INTENDED FIRST DEFENDANT
AND
XYZ LTD.
..............................................................INTENDED SECOND
DEFENDANT
AFFIDAVIT
I, RIGHTEOUS ROB, an Advocate of The High Court of Kenya, and practising under the firm of Solvit & Fixit Advocates of Trust Building, Moi Avenue, P.O. Box 1234, Nairobi, do hereby make oath and state as follows: -
1. THAT I have conduct
of this suit on behalf of the intended plaintiff herein and therefore competent
to swear this affidavit.
2. THAT the plaintiff
has a strong prima facie case against the defendants and is likely to succeed
in the action.
3. THAT the plaintiff
has suffered or will suffer actual or potential loss and damage which will be
very serious for him and that he and his business has been or will be put in
great jeopardy and suffer serious prejudice which cannot be compensated for by
damages.
4. THAT there are
grounds for believing {spell out} that the defendants have in their possession,
custody, power or control documents, goods and articles which afford important
or strong evidence that the defendants have infringed or are likely to infringe
the plaintiff’s rights, specifying the same or that the defendants have been or
it is apprehended that they will be passing of the plaintiff’s goods or that
the defendants have wrongfully or dishonestly received or obtained funds
belonging to the plaintiff {specifying the same}which the plaintiff seeks to
trace and follow into other assets or property or that the defendant has committed
or is likely to commit any other wrongful act or conduct {specify} which has
caused or is likely to cause serious or irreparable loss and damage to the
plaintiff; and
5. THAT there are
grounds for believing, {fully spell out} that the defendant might destroy,
deface, obliterate or part with the possession or control of any such
documents, goods or articles or otherwise render them useless to the plaintiff
or put them out of his reach unless the Anton Piller order is granted and
enforced without the defendant having advance knowledge of the application or
the order made.
6. THAT the facts
herein deposed to are within my own knowledge and I am duly authorised by the
plaintiff to make this affidavit.
at Nairobi this ………. day of ……………..……., } ………..………………………
1999. } DEPONENT
}
}
BEFORE
ME
}
}
}
}
}
}
COMMISSIONER
FOR OATHS
}
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