Kau v Mota-Engil Engenharia E Construcao Africa (Cause E714 of 2025) [2025] KEELRC 3009 (KLR)
The bottom line
#A Kenyan employment court let a departing company off an injunction but ordered it to deposit a year's salary as security before judgment, protecting the employee's claim.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for interlocutory relief
A prima facie case with some possibility of success was established, but the Giella test was not satisfied in full because irreparable injury and balance of convenience favoured the Respondent
The Court held that the claim of termination of a fixed-term contract before its contractual expiry, assurances of an Ethiopia expatriate role, remote work and incurred relocation expenses, and accrued leave days are all matters requiring a full trial. The claim was therefore neither frivolous nor speculative. However, since the reliefs sought are essentially monetary, damages would suffice, and an injunction would paralyse the Respondent's remaining operations.
Pre-judgment security despite silence in the ELRC Procedure Rules 2024
The Court may order security before judgment by borrowing from Order 39 of the Civil Procedure Rules where its own Rules are silent
The Employment and Labour Relations Court (Procedure) Rules 2024 are silent on pre-judgment security. Following prior practice and authority, the Court borrows from the Civil Procedure Act and Rules to fill the lacuna. Order 39 Rule 1 demonstrates security before judgment is not alien to Kenyan law, and the discretion is exercised under Article 50(1) of the Constitution in deserving cases.
Continuity of the Respondent's operations in Kenya
The Respondent failed to demonstrate continuity of its core operations in Kenya; continued shipment of assets to Ethiopia was not denied
The Respondent relied on a lease agreement and assertions of ongoing obligations, but the Court held that a lease does not prove continuing operations. The Respondent did not state what assets it holds in Kenya or for how long, and did not deny the Claimant's averment of continuous shipment of assets to Ethiopia since October 2024, justifying a security order.
Legal principles established
#- Where the ELRC's own Procedure Rules are silent on a procedural issue, the Court may resort to the Civil Procedure Act and Rules
- Provision of security before judgment is available in deserving cases to preserve the integrity of the judicial process and ensure a successful party is not left without remedy
- A company's continuing operations are proved by demonstrating legal continuity of its core operations in the country, not merely by existence of a lease agreement
- Security ordered need not equal the sum claimed; it must be a reasonable sum capable of protecting the claimant's potential award
Court orders
#- 1.The Respondent shall, within twenty one (21) days, deposit in the Court an amount equivalent to the Claimant's twelve (12) months' gross salary as at the time of termination, to be held in deposit until the suit is heard and determined or until further orders
- 2.The suit shall be fast-tracked and fixed for hearing
- 3.Costs of the application shall be in the main suit
- Jurisdiction invoked
- Articles 41, 47 and 50 of the Constitution of Kenya 2010; Sections 3, 12 and 49 of the Employment Act; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 40 Rules 1 and 2 and Order 39 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kau v Mota-Engil Engenharia E Construcao Africa (Cause E714 of 2025) [2025] KEELRC 3009 (KLR)", Case Analysis (2025). Cause No E714 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3009/eng@2025-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.