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ELRCDismissedNot stated in judgment· [2016] KEELRC 473 (KLR)

Thomas Mukoya v Metal Crowns Limited [2016] KEELRC 473 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
18 October 2016
HWHellen Wasilwa
1,270 words in judgment
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The bottom line

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A Kenyan employment court refused to make a worker pay costs upfront because the employer hadn't even filed a defence to show the case was weak.

What this practically means

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Executive summary

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The Respondent brought a Notice of Motion dated 21st July 2015 under Sections 12(3)(viii) and 4 of the Industrial Court Act seeking an order that the Claimant furnish security for the Respondent's costs of the claim pending hearing and determination of the cause, plus costs of the application. The Respondent relied on the affidavit of Stephen Murithi, asserting that all the Claimant's dues had been settled, that it had a bona fide defence, and that the Claimant's financial means were unknown since he left employment, so the Respondent was unlikely to recover its costs if successful. Counsel cited Shah vs. Shah, Industrial Plant EA Ltd vs. Stanbic Bank, Ahmed Mohammed Ahmed and Joel Kibiwott for the proposition that a court may order security where a claimant's means are unknown or unproven. The Claimant did not file a formal response but, through submissions, argued that the Respondent knew his identity number and his advocates' address, and that poverty alone is not a ground for ordering security, citing Timothy Manyara vs. Pyrethrum Board of Kenya and John Kiare vs. Dyer Blair Investment Limited. Justice Hellen Wasilwa observed that the Respondent, though asserting the claim had no triable issues, had never filed a response to the claim, so the court could not assess whether the Claimant had a case. She also found that the Claimant had a known address, having been served with the application. The application was dismissed with costs to the Claimant.

Key legal issues

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01

Whether security for costs should be ordered against a claimant of allegedly unknown financial means

Holding

The application was dismissed; the court found it could not assess the claim's merit because the respondent never responded to the claim, and the claimant had a known address

Reasoning

The court noted the respondent asserted the claim had no triable issues yet filed no response to the claim itself, so the court could not assess whether the claimant had a case. The claimant's reply showed he had an address, which the court believed existed since he was served with the application. Security for costs was therefore unwarranted on the material before the court.

p. 3

Legal principles established

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  • A respondent applying for security for costs must respond to the claim so that the court can assess whether triable issues exist

Court orders

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  1. 1.The application for security for costs is dismissed with costs to the Claimant/Respondent

Authorities

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Legislation

  • Industrial Court ActSection 12(3)(viii) and 4
  • Civil Procedure Rules 2010Order 26 Rule 1
  • Rules of Supreme Court Practice Rules (England)Order 23

Cases cited (7)

  • Elloy Molinero vs. Par Properties Limited
    ELC No 8 of 2014
  • Shah vs. Shah
    1982 KLR
  • Industrial Plant EA LTD vs. Stanbic Bank and Another
    Nairobi HCCC No 532 of 2006
  • Ahmed Mohammed Ahmed vs. Ahmed Mohideen & Another
    (2012) eKLR
  • Joel Kibiwott & 4 Others vs the Registered Trustees of Our Lady of Victory
    HCC 146 of 2004
  • Timothy Manyara and 144 Others vs. Pyrethrum Board of Kenya
    Civil Case No 108 of 2014
  • John Kiare vs. Dyer Blair Investment Limited and Another
Jurisdiction invoked
Section 12(3)(viii) and 4 of the Industrial Court Act

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, "Thomas Mukoya v Metal Crowns Limited [2016] KEELRC 473 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/473/eng@2016-10-18

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