Naftaly Kaimenyi Maingi v Odex Chemicals Limited [2020] KEELRC 622 (KLR)
The bottom line
#A Kenyan court stopped an employer from repossessing a worker's car because the employer couldn't prove how much the worker actually owed.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for interlocutory injunction
The claimant established a prima facie case with likelihood of success because the respondent owed him unascertained amounts (mileage, deductions, terminal dues) that could substantially reduce or extinguish the sums claimed in the counterclaim.
Applying Giella v Cassman Brown and the Mrao definition of a prima facie case, the court found it undisputed that the respondent advanced a loan for the vehicle registered in its name only as security. The claimant contested the Kshs.1,600,321 claimed, yet the respondent gave no breakdown of the debt or of the terminal dues it held. Sections 10 and 74 of the Employment Act placed the burden of keeping and producing such records on the respondent, so it could not fault the claimant for non-production.
Irreparable harm and the mortgagee analogy
The claimant would suffer irreparable harm and be rendered destitute if the vehicle were repossessed, and the respondent, not being a mortgagee or financial institution, could not invoke mortgagee rules against an injunction.
The claimant used the vehicle to earn a living and its loss would not be adequately compensable in damages. The court rejected the respondent's reliance on the mortgagee principle from Mrao, holding that the respondent was a mere secured creditor by private arrangement and could not enjoy the statutory rights of a mortgagor. The undisclosed claim that the claimant was servicing other loans was neither pleaded in the replying affidavit nor claimed in the defence and counterclaim.
Clean hands objection
The respondent's unclean hands objection did not defeat the application; the claimant's willingness to settle any amounts found owing after taking of accounts weighed in his favour.
Although the respondent invoked the clean hands maxim through Francis Munyoki Kilonzo v Vincent Mutua Mutiso, the court found the claimant had offered to pay any sum found owing once accounts were taken, and the real dispute concerned unascertained amounts the respondent was statutorily obliged to document. The allegation of undisclosed loans was not pleaded, undermining the equitable objection.
Legal principles established
#- An employer, not being a commercial bank or financial institution and not a mortgagee, cannot rely on the rule that a mortgagee will not be restrained from exercising its power of sale merely because the amount due is in dispute.
- Under Sections 10 and 74 of the Employment Act, it is the employer that must keep and produce records of amounts due or owed by an employee, and it cannot fault the employee for failing to produce records in the employer's possession.
- A dispute as to the amount due is not a bar to an injunction where the applicant establishes a prima facie case and irreparable harm.
Court orders
#- 1.The respondent be and is hereby restrained from repossessing motor vehicle registration number KCK 917M pending the hearing and determination of the claim herein
- 2.The costs of this application shall be in the cause
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims; interim relief under the Employment Act and Civil Procedure Act (Section 1B) with Article 159(2)(d) and Article 48 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Naftaly Kaimenyi Maingi v Odex Chemicals Limited [2020] KEELRC 622 (KLR)", Case Analysis (2020). Notice of Motion dated 3rd April 2020 in a claim filed together therewith. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/622/eng@2020-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.