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ELRCDismissedCause No 1191 of 2014· [2014] KEELRC 1394 (KLR)

Nakia J. White v Flame Tree Limited & 2 others [2014] KEELRC 1394 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
17 October 2014
962 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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The Claimant, Nakia J. White, sued for unfair termination and non-payment of salary, claiming outstanding salary arrears of Kshs.1,721,550, interest at 18%, pay for days worked in May, damages for wrongful termination and costs. By notice of motion dated 4th August 2014, she sought security before judgment: that the 3rd Respondent, Timothy Jason Smyth, deposit his passport in court and that the Director of Immigration bar the 2nd Respondent from leaving the jurisdiction, and that Kshs.2,000,000 be deposited into a joint interest-earning account of the parties' advocates as security for eventual decretal sums, costs and interest. The 3rd Respondent opposed by replying affidavit, deposing that he lives and works in Kenya, does not intend to leave, that both respondent companies are solvent and operational, and that no employment relationship existed between him and the Claimant. The court, per Hon. Lady Justice Maureen Onyango, set out the test for security before judgment: the applicant must demonstrate a prima facie case and prove that the respondent is likely to liquidate or remove assets from the court's jurisdiction. Although the Claimant established a prima facie case through her employment contract and termination email (facts admitted in the 3rd Respondent's statement), she failed to prove allegations of asset dissipation or intended flight from jurisdiction; her affidavit allegations were unsupported and no source of the information was disclosed. The court held that such bare allegations cannot justify denial of the constitutional rights to freedom of movement and protection of property. The application was dismissed with costs in the cause.

Key legal issues

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01

Test for security before judgment

Holding

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.

Reasoning

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.

p. 2
02

Evidentiary sufficiency of allegations of asset dissipation and intended flight

Holding

Unverified allegations in an affidavit, without disclosure of the source of information, do not constitute proof.

Reasoning

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.

p. 2
03

Constitutional rights against which security orders must be justified

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Claimant's notice of motion dated 4th August 2014 is dismissed
  2. 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

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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, "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.