Cleopatra Kama Mugyenyi v Aidspan [2016] KEELRC 1368 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether a freezing order should issue against the respondent pending the claims
The freeze order issued ex parte on 14th March 2016 was lifted subject to the respondent furnishing a Kenyan-based guarantee of Kshs.16,315,200/= as security
The court held that freezing orders are exceptional, require proof of intent to defeat a decree beyond mere apprehension, and should not issue where justice can be achieved by other means. The respondent exhibited a lease offer and an insurance policy, but the insurance was from a foreign company with no known local agents, making the claimants' enforcement fear plausible. The court therefore balanced the interests by substituting security for the freeze.
The quantum of security appropriate
The court estimated the most probable award at approximately Kshs.16,315,200/=, taking into account the maximum notice, pension/NSSF contributions barring service pay, and the 12-month cap on compensation for unfair termination
The court reviewed the pleadings and the respondent's Admin Manual and Staff Handbook, concluding that if not entitled to renewal the claimants would get at most one month's notice, could not claim service pay under section 35(6) given pension and NSSF contributions, and that twelve months' compensation is awarded only in exceptional cases which this was not.
Legal principles established
#- Attachment before judgment (freezing orders) is governed by different principles from ordinary interim injunctions: the claimant must show a prima facie case based on a pre-existing cause of action and that the respondent has assets within the jurisdiction reasonably feared to be removed or dissipated
- The power to order attachment before judgment must not be exercised lightly and only upon clear proof of mischief
- Mere apprehension, however well grounded, is insufficient without evidence that the defendant intends to do what is feared
- Interlocutory freeze orders should only issue where justice cannot be achieved by other means
Court orders
#- 1.The order freezing the respondent's accounts issued on 14th March 2016 is lifted, subject to substitution
- 2.The respondent to furnish and file with the Registrar a suitable guarantee from a financial institution or insurance company based in Kenya to the extent of Kshs.16,315,200/= as security
- 3.The substitution with a suitable guarantee shall be a pre-condition to lifting the freeze order
- 4.The respondent shall have 30 days to comply with the order
- 5.Each party be at liberty to apply
- Jurisdiction invoked
- Interlocutory jurisdiction of the Employment and Labour Relations Court to order attachment before judgment / freezing orders (invoking Order 27 and 40 of the Civil Procedure Rules as argued by the parties)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cleopatra Kama Mugyenyi v Aidspan [2016] KEELRC 1368 (KLR)", Case Analysis (2016). Causes 219 and 232 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1368/eng@2016-04-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.