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ELRCDismissedNotice of Motion dated 29th April 2015 in a claim dated 14th April 2015 (Cause No. 734 of 2015 referred to in the judgment)· [2015] KEELRC 289 (KLR)

UBA Kenya Bank Limited v Sylvia Mututi Magotsi [2015] KEELRC 289 (KLR)

Employment and Labour Relations Court
30 October 2015
2,410 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to freeze a former employee's assets because the bank had no solid evidence she was hiding or selling them.

What this practically means

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Executive summary

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The Claimant bank moved the Employment and Labour Relations Court by Notice of Motion dated 29th April 2015 seeking orders against its former advocate and employee, the Respondent, in a claim for breach of contract, breach of confidentiality and professional ethics and negligence said to have caused losses of over USD 1.6 million arising from fatally defective standby letters of credit. The Claimant sought an order compelling the Respondent to furnish a complete inventory of her monies and assets worldwide, a Mareva-type temporary injunction restraining her from dissipating or encumbering her assets, an alternative asset-freezing order, and security for costs of Kshs 3,000,000/=. The Respondent opposed, contending the application was based on information and belief without disclosed sources, that there was no real risk of dissipation, that the reliefs were not pleaded in the Memorandum of Claim, and that the freezing orders were abusive and intended to pressure her. Applying Giella v Cassman Brown and the distinct principles governing Mareva/freezing injunctions, the court found the Claimant had an arguable case but no tangible evidence that the Respondent was dissipating or removing assets; her parallel claim against the bank for unpaid dues and unfair dismissal showed an intention to remain within the jurisdiction. Irreparable harm and the balance of convenience were not established. The court dismissed the application in its entirety and directed that the main suit take its normal course.

Key legal issues

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01

Requirements for a Mareva/freezing injunction

Holding

The Claimant satisfied only the 'good arguable case' limb; the risk of dissipation and irreparable harm were not established, so the Mareva injunction was refused

Reasoning

The court distinguished Mareva relief from the ordinary Giella interlocutory injunction test, adopting the criteria that the claimant must show a good arguable case, assets within the jurisdiction, and a real risk that those assets will be removed or dissipated. The court found an arguable case but no tangible evidence of dissipation; the Respondent's own cross-claim for unpaid dues indicated an intention to remain within the jurisdiction. The balance of convenience favoured refusal.

p. 5
02

Irreparable harm and balance of convenience

Holding

Neither irreparable harm nor balance of convenience favoured the Claimant

Reasoning

The Claimant produced no evidence that the Respondent was disposing of, dissipating or removing assets. The Respondent had herself sued the Claimant for unpaid balances and unfair dismissal in a parallel cause, showing she intended to remain within the jurisdiction. Encumbering her assets after loss of employment would be unjust and a gross inconvenience, placing the balance of convenience squarely against the granting of the orders.

p. 5
03

Relief not pleaded in the main claim

Holding

Reliefs in the Notice of Motion not pleaded in the Memorandum of Claim cannot be granted at the interlocutory stage

Reasoning

A comparison of the prayers in the Notice of Motion with those in the Memorandum of Claim showed that the interlocutory prayers had not been pleaded in the substantive claim. Applying the principle that a party cannot seek at an interlocutory stage relief not contained in the claim, the court held the application could not stand. This applied to all prayers, including the gagging/disclosure order whose basis was not established.

p. 5

Legal principles established

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  • A Mareva (freezing) injunction is governed by principles distinct from ordinary interim injunctions, requiring a good arguable case, jurisdiction, assets within the jurisdiction, a real risk of dissipation, and balance of convenience
  • Fear alone, unsupported by evidence of imminent departure of assets, does not justify a Mareva injunction
  • Freezing relief cannot be used merely as security for the satisfaction of a future judgment or to pressure a defendant
  • A party cannot seek at an interlocutory stage relief that is not pleaded in the substantive claim

Court orders

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  1. 1.Application dismissed
  2. 2.Main suit to take its normal course

Authorities

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Cases cited (6)

  • Patrick Otembo Vs Afrispace Kenya Limited & 3 Others
    [2006] eKLR
  • Giella Vs. Cassman Brown & Co. Limited
    [1971] E.A. 358
  • DCF Engineering Limited Vs. Johari Limited & Another
    2013 eKLR
  • International Air Transport Association & Another Vs Akarim Agencies Limited & 2 Others
    [2014] eKLR
  • Viable Deco Solutions Limited Vs Co-Op Bank of Kenya Limited
    [2014] eKLR
  • Comec Garage Transport Ltd. – vs.- Taoxago Xango Shontang
    HCCC 847 of 1995
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the employment-related claim asserted in the Memorandum of Claim ('this Court has jurisdiction over the matter')

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "UBA Kenya Bank Limited v Sylvia Mututi Magotsi [2015] KEELRC 289 (KLR)", Case Analysis (2015). Notice of Motion dated 29th April 2015 in a claim dated 14th April 2015 (Cause No. 734 of 2015 referred to in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/289/eng@2015-10-30

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