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ELRCDismissedELRC Cause (application dated November 28, 2023)· [2024] KEELRC 333 (KLR)

Mwanga v Eden Reforestation Projects (Cause E088 of 2022) [2024] KEELRC 333 (KLR)

Employment and Labour Relations Court
14 February 2024
DMD. K. Njagi Marete
986 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court (D. K. Njagi Marete, Judge) delivered on 14 February 2024 on an application dated November 28, 2023. The Claimant/Applicant sought an order directing the Respondent to deposit Kshs.15 Million as security for his claim, apprehending that the Respondent was winding up its Kenyan operations and about to leave the court's jurisdiction, having served employees with notices of redundancy due to lack of donor funding. The Respondent opposed the application through a replying affidavit sworn on January 4, 2024, explaining that redundancies affected only the Ngomeni site (and suspension of the Gwassi site) following cessation of donor funding for those specific sites, while operations continued at over 30 other sites in Kenya, with no intention to leave the jurisdiction. The Respondent argued the application lacked legal and factual foundation, that the Kshs.15 million figure was unsubstantiated, and that it was improperly brought after the hearing had concluded and while judgment was awaited. The Applicant relied on Monica Imali Muliango v Catherine Masaka; the Respondent relied on authority on attachment before judgment, including Kuria Kanyoko t/a Amigos Bar and Restaurant, stressing that such powers are exercised only upon clear proof of intent to defeat a decree. The court agreed with the Respondent, holding there was insufficient evidence supporting the allegations, and dismissed the application for want of merit on 14 February 2024.

Key legal issues

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01

Whether security for the claim/attachment before judgment should issue against the Respondent

Holding

The application was dismissed; the Applicant failed to provide sufficient evidence of imminent winding up or removal of assets from the jurisdiction, particularly where the hearing was concluded and judgment was imminent

Reasoning

The Respondent's replying affidavit showed that redundancies affected only specific project sites (Ngomeni and Gwassi) due to cessation of donor funding, while operations continued at over 30 other sites in Kenya. There was no intention to leave the jurisdiction. The Applicant's apprehension rested on a media article specific to one site. The court found the allegations unsubstantiated and the Kshs.15 million figure without any foundation, and agreed with the Respondent that the application was an abuse fit only for dismissal.

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Legal principles established

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  • An order for security or attachment before judgment requires clear proof that the defendant is about to dispose of or remove property from the jurisdiction with intent to obstruct or delay execution of a decree

Court orders

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  1. 1.The application dated November 28, 2023 is dismissed for want of merit
  2. 2.Costs: not expressly stated in the judgment excerpt (the court ordered dismissal; costs of the application had been sought against the Respondent but no costs order is recorded)

Authorities

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Legislation

  • Civil Procedure Rules (referenced via Order 38, Rule 5 in cited authority)Order 38, Rule 5

Cases cited (2)

  • Monica Imali Muliango v Catherine Masaka
    ELRC Cause No. 989 of 2018
  • Kuria Kanyoko t/a Amigos Bar and Restaurant v Francis Kinuthia Nderu, Helen Njeru Njeru and Andrew Kinuthia Nderu
    (1988) 2 KAR 1287-1334
Jurisdiction invoked
Employment and Labour Relations Court original jurisdiction (court not expressly stated in the excerpt)

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, "Mwanga v Eden Reforestation Projects (Cause E088 of 2022) [2024] KEELRC 333 (KLR)", Case Analysis (2024). ELRC Cause (application dated November 28, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/333/eng@2024-02-14

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