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ELRCDismissedNotice of Motion dated 11.11.2015, filed 29.1.2016· [2016] KEELRC 181 (KLR)

Sammy Murere Biketi v Insteel Limited [2016] KEELRC 181 (KLR)

Industrial Court (Employment and Labour Relations Court)
6 December 2016
HWHellen Wasilwa
1,148 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to force an employee to deposit Kshs.500,000 before suing, ruling that money troubles cannot block access to justice.

What this practically means

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Executive summary

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The Respondent/Applicant, by Notice of Motion dated 11.11.2015 filed on 29.1.2016 under Rules 16 and 28 of the Industrial Court (Procedure) Rules 2010, sought an order compelling the Claimant/Respondent to furnish security for costs of Kshs.500,000/=, failing which the Memorandum of Claim be struck out or proceedings stayed. The application was supported by the affidavit of Anthony Muring'u Kung'u, who deponed that the Claimant, a former employee terminated for alleged misappropriation and absconding, had no assets or employment in Kenya and had an unsatisfied judgment of about Kshs.1,490,688.55 against him in Nairobi CMCC No. 2888 of 2014, entered after his defence was struck out on admission. The Claimant opposed the application through a replying affidavit sworn 26.2.2016, asserting he was coerced into a deed of settlement under a promise not to be terminated, that the Applicant reneged and dismissed him, and that he owns property known as Mavoko Town Block 3/1274 whose title is held by the Applicant. Counsel for the Applicant relied on Nextech Limited and Noormahamed Abdulla on the discretionary nature of security for costs. Wasilwa J accepted that the order is discretionary and requires a balancing act, including the Claimant's prospects of success. While the Claimant had not paid the prior decree nor appealed, the Court found the issues in CMCC 288/2014 different from the present suit, which had to be considered on its own merit. Guided by access to justice and fair hearing, the Court rejected the application, directed the case to proceed on its own merit without conditions, and ordered costs in the cause.

Key legal issues

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Whether security for costs should be ordered against the Claimant

Holding

The application was rejected; the claim proceeds without conditions.

Reasoning

The Court held the order is discretionary and requires a balancing act, including the Claimant's prospects of success. Although the Claimant had not paid a decretal sum in CMCC 288/2014 nor appealed, indicating possible financial difficulty, the issues in that case differ from the present one. Guided by access to justice and fair hearing, the Court declined to bar the Claimant from court services on account of his inadequacies.

p. 3

Legal principles established

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  • An order for security for costs is discretionary and is designed to protect a defendant who may have difficulty realising costs in the event of success.
  • A litigant should not be prevented from accessing the Court on account of his inadequacies; each case is considered on its own merit.

Court orders

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  1. 1.The application for security for costs is rejected
  2. 2.The case to proceed on its own merit without any conditions
  3. 3.Costs in the cause

Authorities

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Legislation

  • Industrial Court (Procedure) Rules 2010Rules 16 and 28

Cases cited (4)

  • Nextech Limited vs. Bedan Ochege T/A, Bedanauctioneers Services & Another
    2015 eKLR
  • Pan African Bank Limited vs. Jasop Limited Abraham Kiptanui & Another
    HCCC No. 4616 of 1993
  • Gitirau Peter Munya vs. Dickson Mwenda Kithinji & 2 Others
    (2014) eKLR
  • Noormahamed Abdulla vs. Ranchhodbha 3 – Patel & Another
    (1962) E.A 448
Jurisdiction invoked
Rule 16 and 28 of the Industrial Court (Procedure) Rules 2010 and any other enabling provision of the law

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, "Sammy Murere Biketi v Insteel Limited [2016] KEELRC 181 (KLR)", Case Analysis (2016). Notice of Motion dated 11.11.2015, filed 29.1.2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/181/eng@2016-12-06

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