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ELRCDismissedNot stated in the extract provided· [2023] KEELRC 3303 (KLR)

Sangare v International Planned Parenthood Federation & another (Cause E621 of 2023) [2023] KEELRC 3303 (KLR)

Employment and Labour Relations Court
19 December 2023
LNLinnet Ndolo
2,256 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that being a foreigner without local assets is no reason to force a claimant to pay money upfront to cover potential legal costs.

What this practically means

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Executive summary

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By a Notice of Motion dated 8th November 2023, the Respondents sought security for costs in the form of unconditional and irrevocable bank guarantees totalling Kshs. 25,000,000 (Kshs. 10,000,000 for the costs of the suit and Kshs. 15,000,000 for their counterclaim), and a gag order restraining the Claimant from publishing or discussing the subject matter of the proceedings. The Respondents, who had terminated the Claimant's employment on allegations of breach of confidentiality, argued that the Claimant, a foreign national with no permanent residence in Kenya, owned no local assets, making execution of any judgment difficult. They also relied on a newspaper article allegedly orchestrated by the Claimant to argue reputational harm. The Claimant opposed the application through Grounds of Opposition and a replying affidavit, arguing it was discriminatory, violated Articles 27, 48 and 50 of the Constitution, and that the gag order would contravene media freedom and freedom of expression. The court held that the Respondents had not met the threshold for attachment before judgment under Order 39 Rule 5(1), noting that there is no legal basis for treating a litigant's foreign nationality or lack of permanent residence as a material consideration for security for costs, consistent with the Supreme Court's guidance in Westmont Holdings. On the gag order, the court found the Respondents failed to identify the specific confidential information to be protected and failed to justify the limitation on freedom of expression under Article 24 of the Constitution. The entire application was dismissed with costs in the cause.

Key legal issues

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01

Attachment before judgment under Order 39 Rule 5(1)

Holding

The Respondents failed to establish the threshold; the Claimant's foreign nationality and lack of a permanent residence in Kenya do not justify an order for security for costs.

Reasoning

The court found that Order 39 Rule 5(1) requires proof that the defendant is about to dispose of or remove property with intent to obstruct or delay execution of a decree. The Respondents' only ground was the Claimant's foreign nationality and lack of permanent residence. The court held there is no legal basis for treating these facts as material, and relied on the Supreme Court's guidance in Westmont Holdings that security cannot be ordered merely on the impecuniosity of the opposite party.

p. 4
02

Gag order / restraint on publication of proceedings

Holding

The Respondents did not make out a case for a gag order.

Reasoning

The court noted that the Respondents sought a general interdict without identifying the specific information claimed to be confidential, lumping together the entire subject matter of the proceedings. Applying the Advtech Resourcing requirements for what constitutes confidential information, the court found the Respondents failed to identify protectable information. Further, any limitation on the Claimant's Article 33 freedom of expression had to be justified under Article 24, which the Respondents did not attempt.

p. 5

Legal principles established

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  • Foreign nationality and lack of permanent residence in Kenya are not a material consideration in an application for security for costs / attachment before judgment.
  • An order for attachment before judgment must not be issued lightly and requires clear proof of intent to obstruct or delay execution of a decree.
  • Any limitation of the freedom of expression under Article 33 of the Constitution must be justified within the confines of Article 24.

Court orders

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  1. 1.The entire Notice of Motion dated 8th November 2023 is dismissed
  2. 2.The Respondents shall pay the Claimant's costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 39 Rule 5(1)
  • Constitution of KenyaArticle 27, 48, 50
  • Constitution of KenyaArticle 33
  • Constitution of KenyaArticle 34
  • Constitution of KenyaArticle 24
  • Constitution of KenyaArticle 25(c)
  • Data Protection ActNot specified

Cases cited (4)

  • Kanyoko t/a Amigos Bar and Restaurant v Nderu & others
    [1988] eKLR
  • Westmont Holdings SDN BHD v Central Bank of Kenya & others
    (Petition 16 (E023) of 2021) KESC 11 (KLR) (17 February 2023)
  • Advtech Resourcing (Pty) Ltd v Kuhn
    2007 (4) ALL SA 1386, C Para [51]
  • Okiya Omtatah Okoiti v Attorney General & 2 others
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes; interim application brought under Order 39 Rule 5(1) 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, "Sangare v International Planned Parenthood Federation & another (Cause E621 of 2023) [2023] KEELRC 3303 (KLR)", Case Analysis (2023). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3303/eng@2023-12-19

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