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ELRCDismissedCause No. 1436 of 2012· [2012] KEELRC 13 (KLR)

GEORGE KARIUKI NGUGI V BROLAZ EAST AFRICA LTD [2012] KEELRC 13 (KLR)

Industrial Court of Kenya
12 September 2012
RSRadido Stephen
1,205 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Industrial Court at Nairobi on a Notice of Motion dated 21st August 2012 by George Kariuki Ngugi, whose summary dismissal on 17th April 2012 he challenges in Cause No. 1436 of 2012, consolidated with Causes Nos. 1437 and 1438 of 2012 brought by Francis Ndungu Ngugi and Tirus Githimba Munene, dismissed on similar grounds. The Motion, partly granted earlier by Nzioki Wa Makau J, sought orders that the Respondent furnish security for any decree, place property of equivalent value at the Court's disposal, or deposit sufficient money in Court. Because the Industrial Court Act contains no express provision on such security, the Court resorted to Order 38 rule 1 of the Civil Procedure Rules and the principles that attachment before judgment must not be exercised lightly and requires proof of intent to obstruct or delay a decree. The Respondent's advertisement of 10 motor vehicles for sale and its notice to vacate leased premises showed intent to dispose of property in Kenya, but the Applicant failed to prove that the disposition was meant to obstruct or delay any decree; the four-month delay in filing the Causes after dismissal also weighed against the application. Prayers (d), (e) and (f) were denied. To ensure expeditious disposal under Article 159(2) of the Constitution, the three Causes were directed to be set down for hearing within 30 days, with costs of the application to abide the outcome.

Key legal issues

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01

Whether the Industrial Court has a framework for furnishing of security to satisfy an anticipated decree

Holding

The Industrial Court Act contains no express provision on furnishing of security, placement of property or deposit of money; the Court applies civil procedure principles under Order 38 rule 1

Reasoning

The Motion cited Sections 3, 12 and 13 of the Industrial Court Act and Rule 16 of the Industrial Court (Procedure) Rules, but the Applicant did not identify a specific provision on security for a decree. Finding a lacuna, the Court turned to Order 38 rule 1(a)(11)(iii) and (b) of the Civil Procedure Rules and the principles developed on those provisions.

p. 2
02

Whether the Respondent intended to dispose of or remove property to obstruct or delay a decree

Holding

The sale advertisement for 10 vehicles and the notice to vacate leased premises showed intent to dispose of property, but not with the requisite intent to obstruct or delay a decree

Reasoning

The Court accepted that the advertisement in the Daily Nation of 10th August 2012 and the notice to vacate premises indicated intent to dispose of property in Kenya. However, the Applicant failed to demonstrate that this disposition was aimed at obstructing or delaying any decree. The Court also noted the delay: dismissals occurred in April 2012 but the Causes were filed only in August 2012, further undermining the claim of urgency of attachment.

p. 3

Legal principles established

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  • Where the Industrial Court Act contains a lacuna on furnishing of security for a decree, the Court resorts to the principles applicable in civil proceedings, notably Order 38 rule 1 of the Civil Procedure Rules
  • Attachment before judgment is exceptional and requires proof that the defendant is about to dispose of or remove property from the jurisdiction with intent to obstruct or delay a decree

Court orders

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  1. 1.Prayers (d), (e) and (f) of the Notice of Motion dated 21st August 2012 denied
  2. 2.Cause No. 1436 of 2012, Cause No. 1437 of 2012 and Cause No. 1438 of 2012 to be set for hearing within the next 30 days
  3. 3.Directions as to the mode of hearing to be given immediately after delivery of the ruling
  4. 4.Costs of the application to abide the outcome of the Causes

Authorities

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Legislation

  • Industrial Court ActSection 3
  • Industrial Court ActSection 12
  • Industrial Court ActSection 13
  • Industrial Court (Procedure) Rules 2010Rule 16
  • Constitution of KenyaArticle 159(2)
  • Constitution of KenyaArticle 154(2)
  • Civil Procedure RulesOrder 38 rule 1(a)(11)(iii) and (b)

Cases cited (5)

  • Jerry Njuguna vs. J.H. Safaris Ltd
    Milimani No. 589 of 2007
  • Clement Muturi Kigano vs. Shegli Engineering Construction Group Co. Ltd
    Nairobi HCCC No. 212 of 2011
  • Daniele Scolaro vs. Fabio Marelli & others
    Malindi HCCC No. 73 of 2009
  • In the matter of ARMCO (Kenya) Ltd
    HCCCA No. 5 of 2005
  • Samuel Mtakai vs. Kenya Shell Ltd
    HCCC No. 413 of 2009
Jurisdiction invoked
Sections 3, 12 and 13 of the Industrial Court Act, 2011; Rule 16 of the Industrial Court (Procedure) Rules 2010; Article 159(2) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "GEORGE KARIUKI NGUGI V BROLAZ EAST AFRICA LTD [2012] KEELRC 13 (KLR)", Case Analysis (2012). Cause No. 1436 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/13/eng@2012-09-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.