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ELRCDismissedApplication dated 16th April 2014 (arising from Case No. 216 of 2007, John Ochanda & others v Telkom Kenya Limited, consolidated with HCC No. 219 of 2007; HCC No. 255 of 2007)· [2015] KEELRC 1461 (KLR)

Micheal Akeyo & 3 others v Telecom Kenya Limited & another [2015] KEELRC 1461 (KLR)

Industrial Court of Kenya
13 February 2015
MNMathews N. Nduma
1,034 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Industrial Court refused to stop Telkom Kenya from selling its assets, ruling that retrenched employees can recover their awarded pay through normal execution instead.

What this practically means

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Executive summary

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The Claimants/Applicants, former Telkom Kenya Limited employees who had obtained a judgment awarding them 2½ months' salary and a golden handshake on retrenchment (a judgment affirmed by the Court of Appeal in Civil Appeal No. 207 of 2012 and whose further appeal to the Supreme Court was dismissed on 9th April 2014), applied by Notice of Motion dated 16th April 2014 for a temporary injunction restraining the 1st and 2nd Respondents from selling Telkom Kenya Limited or its listed properties to third parties, apprehending that disposal of the company's prime assets could render it insolvent and frustrate realization of the judgment debt. Ex parte orders granted by Marete J. on 16th April 2014 were lifted on 15th May 2014 to allow inter partes hearing. The Respondent opposed through the Replying Affidavit of Ivy Ngana, arguing abuse of process due to duplicity of execution applications at the High Court, lack of cogent proof of intended sale or insolvency, and failure to prove ownership of the listed properties. The Court applied the Giella v Cassman Brown test and found itself in doubt on prima facie case, irreparable injury and ownership of the properties, deciding the matter on the balance of convenience. It held it prudent to allow the Respondent to continue trading provided sale proceeds partly service its debts, including the judgment debt, noting that the ordinary execution processes suffice. The application to confirm the injunction was dismissed on 13th February 2015. No costs order appears on the face of the judgment.

Key legal issues

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01

Whether an interlocutory injunction should issue restraining the sale of the Respondent's assets pending determination of the main suit

Holding

The application was dismissed; the balance of convenience favoured allowing the Respondent to trade provided sale proceeds partly go toward the judgment debt.

Reasoning

The Court applied the Giella v Cassman Brown test. It was in doubt whether the issues were subject of pending High Court suits, whether the listed properties belonged to the Respondent, whether the Applicants' interests were best served by injunction rather than attaching sale proceeds, and whether the sale would cause irreparable injury. Being in doubt, the Court decided on the balance of convenience, holding that execution processes available in law suffice to secure the judgment debt.

p. 3

Legal principles established

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  • Interlocutory injunctions are granted on the Giella v Cassman Brown criteria: prima facie case, irreparable injury not compensable by damages, and balance of convenience
  • Where the court is in doubt, the application is decided on the balance of convenience

Court orders

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  1. 1.The Application to confirm the injunction pending the hearing and determination of the main suit is dismissed
  2. 2.The 1st Respondent allowed to continue carrying on its business including realizing its own assets, provided the proceeds are partly used in paying off its debts including the judgment debt owed to the Claimants/Applicants

Authorities

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Cases cited (2)

  • Giella V. Cassman Brown Ltd
    [1973] EA 358
  • Telkom Kenya Limited Versus John Ochanda & 996 others
    Civil Appeal No. 207 of 2012
Jurisdiction invoked
Jurisdiction over a claim arising from a judgment in employment/retrenchment disputes (Case No. 216 of 2007) before the Industrial Court

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, "Micheal Akeyo & 3 others v Telecom Kenya Limited & another [2015] KEELRC 1461 (KLR)", Case Analysis (2015). Application dated 16th April 2014 (arising from Case No. 216 of 2007, John Ochanda & others v Telkom Kenya Limited, consolidated with HCC No. 219 of 2007; HCC No. 255 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1461/eng@2015-02-13

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