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ELRCDismissedCause No. 229 of 2014 (Ruling No. 2)· [2016] KEELRC 1755 (KLR)

Jacon Joseph Onyango v John Ndungu Mureithi [2016] KEELRC 1755 (KLR)

Employment and Labour Relations Court at Nakuru
5 February 2016
RSRadido Stephen
537 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling on the Respondent's motion seeking to vary an earlier order of the Employment and Labour Relations Court at Nakuru. On 22 January 2016 the Court had set aside an ex parte judgment and granted the Respondent leave to defend on condition that he deposit half the decretal sum (Kshs 1,403,261/-) into an interest earning account in the joint names of the parties' counsel. Four days later the Respondent sought to substitute that condition with a bank guarantee, claiming his shop was undercapitalized after his spouse took away huge sums, that he owned assets worth more than the security amount, and that poor health prevented him from running the shop. The Claimant opposed the motion, pointing to the spouse's deposition in a High Court matrimonial property suit that the Respondent earned over Kshs 1,000,000/- monthly rental income. The Court held that a party seeking a discretionary order must make full, honest, sufficient and candid disclosure of relevant material. The Respondent gave no estimate of the sums allegedly taken by his spouse or the period involved, and relied on asset information disclosed by the spouse in another forum without positively confirming ownership. On that basis the Court found the motion unmerited, dismissed it with costs to the Claimant, and left the original deposit condition intact.

Key legal issues

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01

Duty of disclosure in applications for exercise of judicial discretion

Holding

The Respondent's application was dismissed because he failed to make adequate disclosure of relevant material, including the amounts taken by his spouse and the period involved

Reasoning

The Court held that a motion invoking discretion requires full and candid disclosure. The Respondent alleged his shop was undercapitalized after his spouse took huge sums, yet gave no estimate of those sums or the period involved. The Court reasoned that money of that magnitude was not kept 'under a mattress', and the Respondent should have disclosed more relevant material than he did, defeating his request for variation of the deposit condition.

p. 1
02

Whether a bank guarantee could substitute the cash deposit given the Respondent's unverified creditworthiness

Holding

No - the information on the Respondent's assets and creditworthiness came from the spouse in a different forum and was not positively confirmed by the Respondent himself

Reasoning

A bank guarantee requires the bank to satisfy itself as to the customer's creditworthiness and risk exposure. The material before the Court about the Respondent's assets and creditworthiness was derived from the spouse's deposition in a matrimonial property suit in the High Court, not from the Respondent. He did not confirm that he owned the properties enumerated, so the Court could not assess whether a guarantee was adequate security.

p. 2

Legal principles established

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  • A party seeking the exercise of the Court's discretion must make full, honest, sufficient and candid disclosure of relevant material

Court orders

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  1. 1.The Respondent's motion seeking variation of the deposit condition was dismissed
  2. 2.Costs of the motion awarded to the Claimant
Jurisdiction invoked
Employment and Labour Relations Court, Cause No. 229 of 2014; interlocutory application in an employment cause

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, "Jacon Joseph Onyango v John Ndungu Mureithi [2016] KEELRC 1755 (KLR)", Case Analysis (2016). Cause No. 229 of 2014 (Ruling No. 2). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1755/eng@2016-02-05

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