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ELRCDismissedELRC Cause (Mombasa) - Notice of Motion dated 10th April 2018· [2018] KEELRC 2033 (KLR)

Samira Mbarak Ahmed v First Community Bank Limited [2018] KEELRC 2033 (KLR)

Employment and Labour Relations Court
10 May 2018
LNLinnet Ndolo
1,065 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to stop a bank from increasing a former employee's loan repayments because she waited ten months before going to court.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Employment and Labour Relations Court at Mombasa (Linnet Ndolo J) on the Claimant's Notice of Motion dated 10th April 2018, filed under certificate of urgency. The Claimant, a former employee terminated on grounds of redundancy on 30th November 2016, sought prohibitive and mandatory injunctions restraining the Respondent Bank from debiting her account Kshs. 44,406 as monthly loan installments and an order reverting the loan terms to the original Kshs. 27,929 monthly installments. She contended the Respondent unilaterally varied the loan terms on 30th June 2017 following her alleged unfair termination, contrary to a facility term that no variation would be made upon termination not attributable to her fault. The court applied the Giella v Cassman Brown conditions. It held that no prima facie case was shown: the Claimant made only general allegations of unlawful termination, sought no compensation for it, and waited some ten months after the loan revision before moving to court, an unexplained delay that made the application an afterthought. On irreparable harm, the court noted the Claimant was up to date with repayments and that any excess payments could be credited to her shares in the Musharaka arrangement, so damages would suffice. The balance of convenience therefore tilted towards the Bank, and mandatory injunctions being exceptional remedies, none was warranted. The application was dismissed with no order for costs. The main claim, seeking materially similar relief, remains for full hearing.

Key legal issues

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01

Prima facie case with probability of success

Holding

Not demonstrated; the Claimant made general statements about unlawful termination but built no case and sought no compensation on that score, and delayed ten months before approaching the Court

Reasoning

The court examined the pleadings in their totality and found the prayers in the application materially similar to those in the main claim, with no exceptional circumstances justifying determination at the interlocutory stage. The Claimant's unexplained delay and acquiescence for close to a year defeated the claim of a prima facie case.

p. 2
02

Irreparable harm not compensable by damages

Holding

Not demonstrated; the Claimant was up to date with repayments and any overpayments could be applied to her shares/units in the Musharaka arrangement

Reasoning

The court noted that at the time the application was prosecuted, the Claimant was up to date with loan repayments, showing no real danger of losing the charged property. Monetary loss under the revised terms could be remedied by crediting payments to her shares if the revision were later found wrongful.

p. 2
03

Balance of convenience

Holding

Tilted towards the Respondent Bank since the first two Giella conditions failed

Reasoning

Having found against the Claimant on the first two conditions, the court held the balance of convenience must favour the Respondent Bank. No injunction issued.

p. 2

Legal principles established

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  • The conditions for granting interlocutory injunctions are those in Giella v Cassman Brown
  • Mandatory injunctions will only issue in exceptional circumstances
  • Unexplained delay in seeking injunctive relief may render the application an afterthought

Court orders

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  1. 1.Dismissal of the Claimant's Notice of Motion dated 10th April 2018
  2. 2.No order for costs

Authorities

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Cases cited (2)

  • Giella v Cassman Brown
    [1973] EA 358
  • Nation Media Group & 2 others v John Harun Mwau
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment-related dispute (referenced as 'this 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, "Samira Mbarak Ahmed v First Community Bank Limited [2018] KEELRC 2033 (KLR)", Case Analysis (2018). ELRC Cause (Mombasa) - Notice of Motion dated 10th April 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2033/eng@2018-05-10

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