David Ohana v Kenol Kobil PLC [2021] KEELRC 1398 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether security for costs should issue against a claimant resident outside the jurisdiction
The application was declined; in employment and labour relations disputes, security for costs is only ordered where the claim is frivolous with no chance of success, and the matter must proceed to a hearing on the merits.
While Order 26 Rule 1 of the Civil Procedure Rules permits security for costs where a plaintiff has no known assets in the country, the ELRC's constitutive Act requires parties to be heard without undue regard to technicalities and to facilitate just, expeditious, efficient and proportionate resolution of disputes. Costs in this court are discretionary under section 12(4) of the ELRC Act and do not automatically follow the event, unlike commercial disputes. The issues raised - unlawful termination, discrimination and non-payment of terminal dues - must be heard on the merits before costs can be considered. Section 35(4) of the Employment Act preserves the employee's right to dispute the lawfulness or fairness of termination.
Discretionary nature of costs in the ELRC
The award of costs is not a matter of course but discretionary based on what the court considers just, per section 12(4) of the Employment and Labour Relations Court Act.
The court distinguished commercial litigation where costs follow the suit, adopting the Court of Appeal's reasoning in Alfred Mutuku Muindi v Rift Valley Railways that the wording of section 12(4) gives the trial court discretionary powers to award costs or not, and costs in employment claims do not automatically follow the event.
Legal principles established
#- In employment and labour relations disputes, costs do not automatically follow the event but are discretionary under section 12(4) of the ELRC Act
- Security for costs will not be ordered in employment disputes unless the claim is frivolous and has no possible chance of success
- An employee retains the right to dispute the lawfulness or fairness of termination notwithstanding the employer's purported defence
Court orders
#- 1.The application dated 27th January, 2021 is declined
- 2.Parties shall be heard on the merits
- 3.No orders as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Ohana v Kenol Kobil PLC [2021] KEELRC 1398 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1398/eng@2021-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.