AI-generated case brief

Case Brief · caselaw.co.ke

ELRCDismissedNot stated in the judgment (Notice of Motion dated 27th June 2016, filed 13th July 2016)· [2016] KEELRC 276 (KLR)

William Aluku Ekumu v Mckinney Rogers Kenya Limited [2016] KEELRC 276 (KLR)

Employment and Labour Relations Court

4 November 2016

LNLINNET NDOLO

1,105 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~4 min to read original · ~4 min brief

The bottom line

A Kenyan court refused to force an employer to deposit Kshs 5.1 million before trial because it had a local office, active contracts and sound finances.

What this practically means

Executive summary

The Claimant, an employee, moved the Employment and Labour Relations Court by Notice of Motion dated 27th June 2016 seeking an order that the Respondent deposit Kshs. 5,100,000 in court or in a joint interest-earning account of the parties' advocates as security for appearance. He contended that the Respondent, a subsidiary of the global organisation McKinney Rogers, was winding up its Kenyan operations or being positioned for sale, that its line manager for Africa had relocated to London and sold his assets, and that the Respondent had no known assets within the jurisdiction, rendering any award in his favour nugatory. The Respondent, through a replying affidavit sworn by its Account Manager Wamaitha Ngugi-Gitonga, denied any imminent winding up, asserting it was a distinct Kenyan legal entity with ongoing contracts, a long-term office lease and assets within its premises, and that it would suffer severe hardship if the orders were granted. The court framed one issue: whether the Claimant had laid a case for the deposit. It applied the conditions restated in Saudi Arabian Corporation v Sean Express Services and Jayesh Hasmukh Shah v Navin Haria, noting also Kanyoko v Nderu cited by the Respondent's counsel. The court found the Respondent had a known office within the jurisdiction, ongoing contracts and sound financial capability; a service enterprise needs no tangible assets to show presence; and there was no evidence of acts aimed at defeating justice. The court declined the orders, directed the main claim to proceed on priority basis, and ordered costs in the cause.

Key legal issues

Whether security for appearance should be ordered on apprehension that the Respondent is winding up and divesting from the jurisdiction

Holding

Application dismissed; the Respondent has a known office, ongoing contracts and sound financial capability, and no evidence of acts defeating justice

Reasoning

The court applied the four conditions restated in Saudi Arabian Corporation and Jayesh Hasmukh Shah. It found the Respondent has a known office within jurisdiction, evidence of ongoing business contracts and sound financial capability. As a service enterprise, tangible assets are unnecessary to show presence. The apprehension of winding up was speculative, and the court must avoid unnecessarily tying up capital.

p. 3

Legal principles established

Conditions for granting an order for security deposit: respondent has no known assets and office within jurisdiction; general financial standing; bona fides of applicant's claim; conduct of parties
A service enterprise need not have tangible assets to demonstrate its presence within the jurisdiction

Court orders

1.The application for an order for security deposit of Kshs. 5,100,000 is declined
2.The main claim shall proceed to hearing on priority basis
3.Costs of the application to be in the cause

Authorities

Cases cited (3)

Saudi Arabian Corporation v Sean Express Services
[2014] eKLR
Jayesh Hasmukh Shah v Navin Haria & Another
[2015] eKLR
Kanyoko t/a Amigos Bar & Restaurant v Nderu & 2 Others
[1988] eKLR

Jurisdiction invoked: Inherent discretion of the Employment and Labour Relations Court to order security for appearance pending determination of the suit

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "William Aluku Ekumu v Mckinney Rogers Kenya Limited [2016] KEELRC 276 (KLR)", Case Analysis (2016). Not stated in the judgment (Notice of Motion dated 27th June 2016, filed 13th July 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/276/eng@2016-11-04

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