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ELRCDismissedStatement of claim dated 16.08.2018; Notice of motion dated 17.09.2018, filed 18.09.2018· [2018] KEELRC 344 (KLR)

Saed Maleki v Somehr Group Limited [2018] KEELRC 344 (KLR)

Employment and Labour Relations Court
7 December 2018
BOByram Ongaya
1,488 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to make a foreign worker pay Kshs.500,000 upfront before suing for unpaid salary, protecting his right to be heard.

What this practically means

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Executive summary

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The claimant, a foreign national resident in Iran, sued the respondent claiming USD 72,408.00 in salary arrears and reimbursement of a business trip to Dubai, alleging he was employed as General Manager from 12.02.2017 and never paid the agreed USD 5,000 monthly salary. The respondent, through a notice of motion under section 12(3)(viii) of the Employment and Labour Relations Court Act, 2011 and Rule 17(1) of the ELRC (Procedure) Rules, 2016, sought orders that the claimant furnish security for costs of Kshs.500,000.00 in escrow, failing which the suit be dismissed, on the grounds that the claim was a sham, the claimant was a foreign national with no assets within jurisdiction, and the respondent faced about Kshs.500,000.00 in legal fees. The respondent asserted the claimant was seconded under arrangements whereby his salary was paid by Kalleh Dairy Company/Solico Group Food Industries (SGFI), his contract having been terminated by recall on 19.10.2017, with benefits paid in full. The claimant opposed, saying he could not afford security and that the application would deny him access to justice. Applying Shah v Shah, the court found the respondent had not demonstrated a bona fide defence: no established basis that SGFI was to pay the salary under the contract, no exhibit of payment, and no evidence the Dubai trip was unofficial. Following Ocean View Beach Hotel and Sammy Murere Biketi v Insteel Limited, the court held that ordering security as a precondition to prosecuting the suit would deny the claimant access to justice. The application was dismissed with costs in the cause, and the parties were directed to prosecute the suit on a priority basis. Judgment was delivered at Nairobi on 7 December 2018 by Byram Ongaya, Judge.

Key legal issues

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Whether security for costs should be ordered against a foreign resident claimant

Holding

No. Although the general rule is that security is normally required from plaintiffs resident outside the jurisdiction, the court's discretion, exercised reasonably and judicially, favours refusing the order where the defence is not bona fide and the claimant has no resources to deposit security.

Reasoning

Applying Shah v Shah, the court held the respondent had not shown a bona fide defence: there was no established basis that SGFI was to pay the claimant's salary under the contract of service, no exhibit of payment of salary from 21.04.2018, and no evidence the Dubai trip was unofficial. The letter of 30.08.2018 by Kalleh Dairy Company was not categorical that it paid the money in dispute. Following Ocean View Beach Hotel and Sammy Murere Biketi v Insteel Limited, ordering security as a precondition to prosecuting the suit would deny the impecunious claimant access to justice.

p. 2

Legal principles established

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  • The test on an application for security for costs is not whether the plaintiff has established a prima facie case but whether the defendant has shown a bona fide defence, and the court's discretion to order security from a plaintiff resident outside the jurisdiction must be exercised reasonably and judicially
  • Security for costs is intended to protect a party from irrecoverable litigation expenses, not to deter a plaintiff from pursuing a claim
  • A party should not be prevented from accessing court services on account of his inadequacies

Court orders

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  1. 1.The notice of motion dated 17.09.2018 and filed on 18.09.2018 is dismissed
  2. 2.Costs of the application awarded to the claimant, in the cause
  3. 3.The parties to take steps to prosecute the suit on a priority basis

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12(3)(viii)
  • Employment and Labour Relations Court (Procedure) RulesRule 17(1)

Cases cited (3)

  • Shah –Versus- Shah
    [1982] KLR
  • Ocean View Beach Hotel –Versus- Salim Sultan Moloo & 5 others
    [2015]eKLR
  • Sammy Murere Biketi –Versus- Insteel Limited
    [2016]eKLR
Jurisdiction invoked
Section 12(3)(viii) of the Employment and Labour Relations Court Act, 2011 and Rule 17(1) of the Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Saed Maleki v Somehr Group Limited [2018] KEELRC 344 (KLR)", Case Analysis (2018). Statement of claim dated 16.08.2018; Notice of motion dated 17.09.2018, filed 18.09.2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/344/eng@2018-12-07

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