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ELRCDismissedCause No 1087 of 2014· [2014] KEELRC 117 (KLR)

Benson Maina Ngure v Riverdale Blooms Ltd [2014] KEELRC 117 (KLR)

Employment and Labour Relations Court
11 November 2014
JAJ. N. Abuodha
918 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that an employer cannot demand a cost deposit from a former employee just because they are unemployed.

What this practically means

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Executive summary

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The Respondents (the employer, described interchangeably in the judgment as the Applicant) moved the court by a notice of motion dated 26th September 2014 seeking an order that the Claimant furnish security for the whole of their costs of defending an unfair dismissal claim, or alternatively that their counsel undertake to pay those costs. The supporting affidavit of Anthony Mutugi deponed merely that the Claimant was unemployed and, to his knowledge, had no reliable source of income to pay costs if the claim failed. Counsel for the applicants argued from past experience that costs in similar suits were never recoverable, while counsel for the Claimant opposed, citing Visram J in Chege Mwangi v Mugambo Wa Gachocho Co. Ltd on access to justice. The court held that security for costs is akin to a gagging order imposing a financial precondition to litigation, though a 'necessary evil' appropriate for controlling frivolous claims. It stressed that such an application must not rest on the perceived poverty of a Claimant alone but must assess the merits of the claim; the dismissal dispute here was not frivolous. The application also failed because the affidavit evidence merely alleged inability to pay without any basis, and no estimated quantum of costs was given. The court declined the orders sought, dismissed the application with costs, and directed that its order apply equally to a similar application in Cause Number 893 of 2014.

Key legal issues

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01

Whether security for costs may be ordered merely because a Claimant is unemployed and allegedly without a reliable source of income

Holding

No - such an application must also assess the merit of the claim and be supported by affidavit evidence; poverty alone is not a basis

Reasoning

The court characterized security for costs as equivalent to a gagging order that burdens a litigant before trial, though a 'necessary evil' to control frivolous claims. The claim here - a dismissal dispute turning on whether the Claimant deserted duties - was not frivolous. The supporting affidavit merely alleged unemployment without any basis, and the estimated quantum of costs was not specified, so the court could not form an opinion on the Claimant's capacity to pay.

p. 2
02

The primacy of access to justice in applications for security for costs

Holding

Access to justice is the most important principle and cannot be denied or made harder for persons who are poor, old or unemployed

Reasoning

Following Visram J in Chege Mwangi v Mugambo Wa Gachocho Co. Ltd, the court held that a litigant's lack of formal employment, poverty or age is not a sufficient reason to order security for costs, since such an order operates as a financial precondition to prosecuting a suit and would exclude impecunious but genuine claimants from the court.

p. 1

Legal principles established

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  • Security for costs should not be ordered on the basis of a litigant's perceived poverty alone without assessing the merit of the claim
  • The right of access to justice cannot be denied or made harder for people who may be poor, old or unemployed
  • An application for security for costs must be supported by affidavit evidence reasonably showing the Respondent's inability to pay, and must specify the estimated quantum of costs

Court orders

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  1. 1.The application for security for costs is dismissed with costs
  2. 2.This order will apply to a similar application in Cause Number 893 of 2014

Authorities

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Cases cited (1)

  • Chege Mwangi Vs. Mugambo Wa Gachocho Co. Ltd
    HCC No. 340 of 2004
Jurisdiction invoked
Inherent jurisdiction of the Employment and Labour Relations Court to order security for costs (provision not specified in the judgment)

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, "Benson Maina Ngure v Riverdale Blooms Ltd [2014] KEELRC 117 (KLR)", Case Analysis (2014). Cause No 1087 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/117/eng@2014-11-11

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