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ELRCDismissedNot stated in the excerpt (Petition filed 3 December 2018)· [2020] KEELRC 560 (KLR)

Anthony Kibandi Watuku v Industrial & Commercial Development Corporation [2020] KEELRC 560 (KLR)

Employment and Labour Relations Court
6 August 2020
RSRadido Stephen
1,296 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to stop the sale of a borrower's property because he waited eight months and never asked for the injunction in his original case.

What this practically means

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Executive summary

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The applicant, a former employee of the Industrial & Commercial Development Corporation, had filed a Petition in December 2018 alleging violations of his rights to fair labour practices, property, economic and social security, fair administrative action and human dignity, together with constructive dismissal, and claiming special damages of Kshs 10,003,929.90 and general damages. He later took a house loan of Kshs 1,250,000 from the Respondent which he stopped servicing after resigning on 7 April 2017. On 7 November 2019 the Respondent issued a notice of intended statutory sale of the charged property, LR NO. THIKA MUNICIPALITY/BLOCK18/1681, registered in the name of Cecilia Wambui Watuku, under section 90 of the Land Act. In June 2020 the applicant moved the Court under a certificate of urgency seeking conservatory orders of temporary injunction restraining the statutory sale pending hearing of the application and the Petition, invoking Article 23(3) of the Constitution, Rule 23 of the Protection of Rights Rules and section 12(3) of the ELRC Act. The Respondent opposed, arguing the property was not the subject of the Petition, the beneficiary was not a party, and no sufficient grounds were shown. The Court declined the orders on four grounds: unexplained delay of some eight months; the injunction was not pleaded in the Petition, contrary to established case law; the substance of the dispute is an employment relationship rather than charges and mortgages; and the applicant failed to demonstrate entitlement to the discretionary relief. The Motion was dismissed with costs to the Respondent, and the applicant was directed to move with speed to have the Petition listed for hearing on the merits.

Key legal issues

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01

Whether a conservatory order of temporary injunction should issue to restrain the statutory sale of charged property pending determination of an employment Petition

Holding

The application was dismissed. Delay, absence of the prayer in the Petition, the nature of the dispute, and the discretionary character of the relief all weighed against granting the injunction.

Reasoning

The Court identified four reasons for refusing the relief: the applicant waited about eight months after the statutory notice under section 90 of the Land Act without explanation; the injunction sought was never pleaded in the Petition, and case law holds such an order cannot issue; the substance of the dispute is an employment relationship, not charges and mortgages; and the applicant failed to demonstrate entitlement to the Court's discretionary and judicious exercise of discretion.

p. 2

Legal principles established

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  • An injunctive order cannot issue where such a prayer was not pleaded in the Statement of Claim
  • A court should decline to intervene with injunctions where the substance of the dispute is an employment relationship rather than charges and mortgages
  • Delay in seeking injunctive relief after a statutory notice, without explanation, weighs against the grant of the discretionary order

Court orders

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  1. 1.The Motion filed on 12 June 2020 seeking a conservatory order of temporary injunction is dismissed with costs to the Respondent
  2. 2.The applicant should move with speed to ensure the Petition is listed for hearing on the merits

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 23(3), 26, 28, 40, 41, 43, 47
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 23
  • Employment and Labour Relations Court Act, 2011section 12(3)
  • Land Act, 2012section 90

Cases cited (4)

  • Ngorika Farmers Co-operative Society Ltd v John Kiarie and 2 Ors
    (2006) eKLR
  • Kihara v Barclays Bank of Kenya Ltd
    (2001) 2 EA 420
  • Southern Credit Banking Corp Ltd v Charles Wachira Ngundo
    HCCC No.1780 of 2000 (UR)
  • Nthenya Muia Mutio v Ndeto Kyalo
    (2012) eKLR
Jurisdiction invoked
Article 23(3) of the Constitution; Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013; section 12(3) of the Employment and Labour Relations Court Act, 2011

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, "Anthony Kibandi Watuku v Industrial & Commercial Development Corporation [2020] KEELRC 560 (KLR)", Case Analysis (2020). Not stated in the excerpt (Petition filed 3 December 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/560/eng@2020-08-06

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