UBA Kenya Bank Limited v Sylvia Mututi Magotsi [2015] KEELRC 289 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Requirements for a Mareva/freezing injunction
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
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.
Irreparable harm and balance of convenience
Neither irreparable harm nor balance of convenience favoured the Claimant
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.
Relief not pleaded in the main claim
Reliefs in the Notice of Motion not pleaded in the Memorandum of Claim cannot be granted at the interlocutory stage
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.
Legal principles established
#- 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
#- 1.Application dismissed
- 2.Main suit to take its normal course
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Oloo v Avo Distribution Group alias Avo Group (Cause E525 of 2022) [2025] KEELRC 1103 (KLR)[2025] KEELRC 1103 (KLR)4 Apr 2025applied
- Ethics and Anti-Corruption Commission v Bare Idris Amin & 7 Others[2020] KEHC 4251 (KLR)15 Jul 2020applied
Cite this brief
#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.