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ELRCDismissedCause No. 737 of 2019 (Ruling No. 2)· [2020] KEELRC 223 (KLR)

Geoffrey Nganga Tambara v Radio Frequency Systems Ltd, Simon Horner & Micheal John Mwaura [2020] KEELRC 223 (KLR)

Employment and Labour Relations Court
18 November 2020
RSRadido Stephen
1,055 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The claimant, Geoffrey Nganga Tambara, moved the Court by a Motion dated 9 December 2019 in Cause No. 737 of 2019 seeking, pending the hearing and determination of his suit for breach of an employment contract as General Manager, an order freezing account number 0170296936184 held by the 1st Respondent, Radio Frequency Systems Ltd, at Equity Bank Limited, Community Branch, Nairobi. In the alternative, he sought an order that the Respondents jointly and severally pay Kshs 18,810,000/- into a joint interest-earning account of the parties' advocates. He asserted he was employed on 11 January 2018 at a gross monthly salary of Kshs 570,000/- but was never paid, and that the 1st Respondent had ceased maintaining a physical office in the country with only the bank account as a known asset, exposing him to a nugatory decree. Citing DCF Engineering Ltd v Johari Ltd, he urged the tests of an arguable case, available assets, risk of dissipation and balance of convenience. The Respondents opposed, denying a valid employment relationship, alleging the Cause was a fraud orchestrated between the claimant and the 3rd Respondent, and pointing out that the account's funds had already been subjected to transfer by court orders in Nairobi ELRC No. 567 of 2019, Nehemiah Kiprop Kiplagat & 18 Ors v Radio Frequency Systems Ltd, of which the applicant was privy. They also relied on Awo Shariff Mohamed v Caltex Oil Kenya Ltd and Shiva Enterprises Ltd on the tests and high threshold. The Court found unrebutted evidence that the funds were the subject of the prior court orders, noted a serious dispute over the existence of a valid employment relationship, and recalled a High Court finding that the 3rd Respondent had been involved in forgery of the 1st Respondent's records. The Motion was dismissed with costs in the cause, and the parties directed to progress the Cause to a priority hearing.

Key legal issues

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01

Whether the criteria for a freezing (Mareva-type) order were satisfied

Holding

The Court declined to grant the freezing order because the funds in the account were already subject to court orders in another cause and there was a serious dispute as to the employment relationship underlying the claim.

Reasoning

The applicant invoked DCF Engineering Ltd v Johari Ltd & Anor, contending an arguable case, available assets within the jurisdiction and risk of dissipation. The respondents showed the named account had been dealt with under court orders in Nairobi ELRC No. 567 of 2019, which the applicant knew about, and that the account had no funds to freeze. The Court also noted a High Court finding of forgery involving the 3rd Respondent, undermining the claim's foundation.

p. 2
02

Whether security for costs should be ordered against the Respondents

Holding

The alternative prayer for security for costs failed because the Court found the case unsuitable for any of the orders sought given the existing court orders over the funds and the disputed employment relationship.

Reasoning

The applicant relied on Aggrey Shivona v Standard Group Plc for the security for costs prayer, while the respondents cited Shiva Enterprises Ltd v Jivaykumar Tulsidas Patel t/a Hytech Investments on the high threshold for security. The Court did not make findings on the employment relationship, which was the foundation of the claim, and found unrebutted evidence that the funds were tied up in another cause. It therefore declined all orders sought.

p. 2

Legal principles established

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  • Where funds sought to be secured are already subject to existing court orders, they may not be available for a further freezing order.
  • A freezing order will not issue where there is a serious dispute as to the existence of the underlying relationship on which the claim rests.

Court orders

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  1. 1.The Motion dated 9 December 2019 is dismissed
  2. 2.Costs of the application to be in the cause
  3. 3.The parties should move to progress the Cause to be heard on a priority basis
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court over the employment Cause; no specific constitutional provision invoked

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, "Geoffrey Nganga Tambara v Radio Frequency Systems Ltd, Simon Horner & Micheal John Mwaura [2020] KEELRC 223 (KLR)", Case Analysis (2020). Cause No. 737 of 2019 (Ruling No. 2). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/223/eng@2020-11-18

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