Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedApplication dated 29 March 2018 in Cause No. 846 of 2014· [2018] KEELRC 2064 (KLR)

Banking, Insurance and Finance Union v National Bank of Kenya Ltd [2018] KEELRC 2064 (KLR)

Employment and Labour Relations Court
13 April 2018
RSRadido Stephen
774 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

A Kenyan employment court refused to stop a bank auction because the union's case never actually mentioned the property it wanted protected.

What this practically means

#

Executive summary

#
The Claimant Union, on 29 March 2018, applied by certificate of urgency for orders restraining the Respondent from selling by public or private auction property L.R. No. MN/1/11087 Mombasa (Lakeview Estate, Bamburi, Mombasa County) belonging to Donald Mungoma Mtana, pending the hearing of Cause No. 846 of 2014. An ex parte restraint was granted by the Duty Court and the application set down inter partes before the Principal Judge; when it came before Radido J, the Respondent, though served, did not appear, and the Court heard the Union alone. The Court reviewed the pleadings history: the original Memorandum of Claim of 21 May 2014 did not plead any dispute over the property, and the amended Memoranda of 2015 and 2017 likewise did not introduce it. The Court therefore held that the injunction sought was in respect of an unpleaded property and was sought in vacuo, making the application incompetent, applying Ringera J's principle in Kihara v Barclays Bank of Kenya Ltd that interlocutory injunctive relief must be anchored in a substantive suit. In the alternative, the Court found no prima facie case: the only ground was pre-emption of the pending Cause, there was disclosure of a regularly serviced loan facility, and the Union never suggested the Respondent's conduct was unlawful or unconscionable. The Court also noted the Union's failure to disclose that earlier attempts to restrain sales of other properties were declined on 6 May 2016. The application was dismissed with no order as to costs, and the file was directed to Onyango PJ for further directions toward expeditious hearing.

Key legal issues

#
01

Whether injunctive relief may issue over property not pleaded in the Statement of Claim

Holding

It may not; the application was incompetent as the order was sought in vacuo.

Reasoning

The original Memorandum of Claim of 21 May 2014 did not plead any dispute over the property, and neither amended Memorandum introduced it. Following Kihara v Barclays Bank of Kenya Ltd, the court held interlocutory injunctive relief must be anchored in a substantive suit; relief over an unpleaded property is incompetent.

p. 2
02

Whether the Union established a prima facie case for an injunction

Holding

It did not; the Union showed no unlawfulness or unconscionability in the Respondent's intended action.

Reasoning

The only ground was that the sale would pre-empt the pending Cause. There was disclosure of a loan facility being regularly serviced, but no particulars of default or legal impediments. The Union did not suggest the Respondent's action was unlawful or unconscionable within the employment relationship.

p. 2
03

Duty of full disclosure on ex parte applications

Holding

The Union breached it by omitting to disclose that earlier injunction attempts over other properties were declined on 6 May 2016.

Reasoning

The Union disclosed only interim orders granted in its favour (25 November 2015 and 17 June 2016) and omitted the earlier refusal, undermining its candour before the Court.

p. 2

Legal principles established

#
  • Interlocutory injunctive relief must be anchored in a substantive suit; an injunction sought in respect of unpleaded matters is incompetent

Court orders

#
  1. 1.The application dated 29 March 2018 is dismissed with no order as to costs
  2. 2.The file to be mentioned before Onyango PJ for further directions as to the expeditious hearing of the Cause

Authorities

#

Cases cited (1)

  • Kihara v Barclays Bank of Kenya Ltd
    (2001) 2 EA 420 (CAK)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the pending Cause No. 846 of 2014 (interlocutory application therein)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Banking, Insurance and Finance Union v National Bank of Kenya Ltd [2018] KEELRC 2064 (KLR)", Case Analysis (2018). Application dated 29 March 2018 in Cause No. 846 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2064/eng@2018-04-13

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