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ELRCAllowedCause (number not stated in judgment); Notice of Motion dated 22nd August 2016· [2016] KEELRC 36 (KLR)

Liu Ching Liang v Webwave Electric Manufucturing (K) Co. Ltd & 2 others [2016] KEELRC 36 (KLR)

Employment and Labour Relations Court (Industrial Court)
18 November 2016
MMM. Mbaru
3,277 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ordered foreign employers to deposit Kshs. 4.3 million in court before trial because they kept no employment records and might leave the country.

What this practically means

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Executive summary

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The Claimant, a Chinese national employed as Sales, Communication and Operations Manager by the 1st Respondent from 12th August 2015, brought a Notice of Motion dated 22nd August 2016 under the Employment and Labour Relations Court Act, the ELRC (Procedure) Rules 2016 and Order 39 of the Civil Procedure Rules seeking an order that the Respondents furnish security for appearance. He alleged he was never paid salary or allowances, was terminated on 28th April 2016 on grounds of redundancy, and that the Respondents, being foreign nationals and sole shareholders of the 1st Respondent, might dispose of shares and leave the jurisdiction, rendering the suit nugatory. The Respondents, through the Replying Affidavit of Weng Shi Fang, denied being the Claimant's employers, asserting the contract was with City xi city Excellent Electrical Equipment Co. Ltd Shijiazhuang Province, and that the Claimant was terminated for redundancy (or theft of company property). The Court noted the question of jurisdiction and the fact of employment had been settled in a prior Ruling of 3rd November 2016, which found the contract of employment was made in Kenya and the place of work was Kenya. The Court held that termination on grounds of redundancy implicated section 40 of the Employment Act, that only an employer can terminate employment, and that the Respondents' failure to produce work records under section 10(6) and (7) of the Employment Act left the defence bare. Finding the Claimant had a prima facie case, that all parties were foreign nationals, and that the purpose of Order 39 is to prevent dissipation of assets, the Court ordered the Respondents to deposit with the Court monies covering the claimed dues of Kshs. 4,296,580.00 within seven days pending hearing, with the main claim allocated a priority hearing date.

Key legal issues

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01

Whether attachment before judgment / security for appearance should issue under Order 39 of the Civil Procedure Rules

Holding

Yes - the Claimant established a prima facie case warranting a security deposit to secure the subject matter pending hearing

Reasoning

The Court had already settled jurisdiction and found the employment contract was made in Kenya and the place of work was Kenya. The Respondents' averment of redundancy implicated section 40 of the Employment Act and its procedural and substantive requirements. The Respondents failed to produce work records, leaving the defence bare. The parties being foreign nationals, and the claim quantified at Kshs. 4,296,580.00, the Court found good basis to secure the subject matter pending hearing.

p. 6
02

Whether the Respondents were the Claimant's employers or wrongly enjoined

Holding

The employment status of the Claimant with the Respondents was secured - termination on grounds of redundancy necessarily implicates them as employer

Reasoning

The prior ruling had held the contract of employment was made in Kenya and the Claimant was sourced for the benefit of the 1st Respondent. Mr Fang's averment that the Claimant was terminated due to redundancy carried weight, as only an employer can terminate employment. The police report at Kilimani was within the Respondents' knowledge, showing they had full knowledge of the employment at all material times.

p. 4

Legal principles established

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  • The burden is on the party claiming an attachment before judgment order to show that the respondent is disposing of property, moving it from the jurisdiction, or about to abscond with the object of defeating a decree
  • Where an employer fails to produce written contract or particulars in legal proceedings, the burden of proving or disproving an alleged term of employment is on the employer
  • Termination of employment can only be effected by an employer and not any other party

Court orders

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  1. 1.The Respondents shall deposit with the Court monies sufficient to cover the claimed dues of Kshs. 4,296,580.00 (295,334.00 Yuan) within seven (7) days pending the hearing and determination of the main claim
  2. 2.A hearing date shall be allocated on priority, noting the subsisting orders with regard to the Work permit and Stay of the Claimant within the jurisdiction of the Court
Jurisdiction invoked
Section 3(1), (2) and (3) and section 20 of the Industrial Court Act (Employment and Labour Relations Court Act) and Rules 16 and 36 of the ELRC (Procedure) Rules, 2016

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, "Liu Ching Liang v Webwave Electric Manufucturing (K) Co. Ltd & 2 others [2016] KEELRC 36 (KLR)", Case Analysis (2016). Cause (number not stated in judgment); Notice of Motion dated 22nd August 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/36/eng@2016-11-18

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