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ELRCDismissedNot stated in the extract· [2018] KEELRC 2197 (KLR)

Thierry Poussard v Bradley Limited [2018] KEELRC 2197 (KLR)

Employment and Labour Relations Court
8 March 2018
HWHellen Wasilwa
1,021 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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A Kenyan court refused to freeze a lottery company's funds because the claimant showed no proof the company was leaving Kenya to dodge payment.

What this practically means

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Executive summary

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The Claimant, who had sued the Respondent on 15th December 2017 for unlawful termination, moved the court by notice of motion dated 12th January 2018 seeking an order that the Respondent deposit Kshs.26,000,000/= being projected costs and award in the claim, together with a temporary injunction restraining the Respondent from transferring, disposing of or withdrawing money held in Account No. 0060015025240101 at Ecobank Thika Branch or any other account in its name. The application was grounded on the Respondent's public notice of 7th January 2018 in the Daily Nation announcing suspension of its operations in Kenya, which the Claimant feared would render any decree nugatory, and on the assertion that the Respondent had no known assets for execution. In its replying affidavit sworn by Managing Director Paul Muchene Kinuthia, the Respondent explained that it is licensed by the Betting Control and Licensing Board to operate the Pambazuka National Lottery, that the notice merely temporarily suspended the sale of lottery tickets and weekly draws pending a sustainable regulatory framework, and that it is a Kenyan company with local directors having diverse businesses and property interests and no intention of absconding. Guided by Order 39 rules 1(b) and (2) of the Civil Procedure Rules, Wasilwa J held that the threshold is proof that the defendant is about to leave the country to obstruct or delay execution of a decree. Finding no evidence of flight or asset disposal, and mindful that a man should not be condemned unheard, the court dismissed the application with costs in the cause on 8th March 2018.

Key legal issues

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01

Whether the threshold under Order 39 rule 1(b) and (2) of the Civil Procedure Rules for ordering a defendant to furnish security or deposit money in court was met

Holding

The threshold was not met. The Applicant did not demonstrate that the Respondent was about to leave Kenya or disposing of its property to obstruct or delay execution of any decree, so the application for security was dismissed.

Reasoning

The court applied Order 39 rule 1(b) and (2) of the Civil Procedure Rules, which permit a court to arrest or require security from a defendant only where satisfied that the defendant is about to leave Kenya in circumstances affording reasonable probability that execution of any decree would be obstructed or delayed. The Respondent, through its Managing Director, explained that the public notice suspended sale of lottery tickets temporarily and did not constitute winding up, and that it is a Kenyan company with local directors having diverse businesses and property interests and no intention of absconding. No affidavit evidence indicated flight or disposal of assets. The court also invoked the principle that a person should not be condemned unheard.

p. 2

Legal principles established

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  • Security for appearance or deposit under Order 39 requires proof that the defendant is about to leave Kenya under circumstances affording reasonable probability that execution of any decree will be obstructed or delayed

Court orders

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  1. 1.The application dated 12th January 2018 is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 39 rule 1(b)
  • Civil Procedure RulesOrder 39 rule 2
Jurisdiction invoked
Order 39 rules 1(b) and (2) of the Civil Procedure Rules

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, "Thierry Poussard v Bradley Limited [2018] KEELRC 2197 (KLR)", Case Analysis (2018). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2197/eng@2018-03-08

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