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ELRCDismissedNotice of Motion dated 18th March 2024 (main claim unresolved)· [2025] KEELRC 2250 (KLR)

Nasimiyu v Hongkong Qingyutang Biotechnology Co. Kenya Limited (Cause E311 of 2025) [2025] KEELRC 2250 (KLR)

Employment and Labour Relations Court
25 July 2025
SRStella Rutto
1,736 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused to freeze a company's asset because the claimant offered only suspicion, not proof, that it would be disposed of.

What this practically means

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Executive summary

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The Claimant, Judith Nasimiyu, moved the Employment and Labour Relations Court by Notice of Motion dated 18th March 2024 (supporting affidavit sworn 18th March 2025) seeking a Mareva injunction restraining the Respondent, its agents and employees from selling or disposing of a wellness machine pending hearing and determination of the main suit, or alternatively an order that the Respondent deposit security of Kshs 1,061,532/= being unpaid salary of Kshs 900,000/= and unpaid leave of Kshs 162,532/=. She apprehended that the Respondent's foreign shareholders would close business, dispose of or move the machine beyond the court's jurisdiction to defeat her claim. The Respondent, through Director Liu Cai Hong, opposed the application, contending that the Claimant is a director and not an employee, so the court lacks jurisdiction; that the machine is critical to its core business and cannot be disposed of without significantly affecting operations; and that it complies with the Companies Act. The court identified a single issue: whether the application was merited. Applying Order 39 Rules 5 and 6 and the authorities of Kuria Kanyoko t/a Amigos Bar and Restaurant and Saving and Loan Kenya Limited v Erustus Mwangi Mungai, the court held that attachment before judgment must not be exercised lightly and requires clear proof of intent to obstruct or delay execution of a decree. Finding no evidence of such intent, and noting that foreign shareholding alone is insufficient and the Claimant did not dispute that the machine is critical to the business, the court dismissed the application with costs in the cause.

Key legal issues

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Whether the Claimant met the threshold for attachment before judgment / Mareva relief under Order 39 Rules 5 and 6 of the Civil Procedure Rules

Holding

She did not; there was no evidence of intent by the Respondent to dispose of or remove the property from the jurisdiction to obstruct or delay execution of a decree

Reasoning

Order 39 Rule 5 requires the applicant to show that the defendant is about to dispose of or remove property from the jurisdiction with intent to obstruct or delay execution of any decree. The Claimant relied solely on the foreign nationality of the Respondent's shareholders and her own apprehension. The court found no evidence of intent, holding that mere allegations yet to be tested by evidence, and mere foreign shareholding, are insufficient. The Respondent's assertion that the machine was critical to its business was undisputed.

p. 3

Legal principles established

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  • The power to attach before judgment must not be exercised lightly and 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; mere apprehension without such evidence does not suffice

Court orders

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  1. 1.Application dated 18th March 2025 dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 39 Rules 5 and 6
  • Civil Procedure RulesOrder 21 Rule 1
  • Companies Actannual returns and statutory registers (as invoked by Respondent)
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (2)

  • Kuria Kanyoko t/a Amigos Bar and Restaurant v Francis Kinuthia Nderu & others
    (1988) 2KAR 126
  • Saving and Loan Kenya Limited v Erustus Mwangi Mungai
    Nairobi High Court Civil Case No. 775 of 2000
Jurisdiction invoked
Not expressly stated; application brought under Order 39 Rules 5 and 6 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, "Nasimiyu v Hongkong Qingyutang Biotechnology Co. Kenya Limited (Cause E311 of 2025) [2025] KEELRC 2250 (KLR)", Case Analysis (2025). Notice of Motion dated 18th March 2024 (main claim unresolved). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2250/eng@2025-07-25

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