Manguthl Simon Isingoma, Saverio Calocero Spinicah & Matara Moraa v Sobetra Uganda Kenya Limited & ICM SPA Limited

7,201,466.73 being the Claimants/Applicants total admitted dues. 3. THAT in the alternative pending the hearing of this application inter partes, this Honourable Court be pleased to issue an order directing the Interested party/2nd Respondent to withhold and/or retain and or pay into the Court any monies due and payable to the 1st Respondent up to the sum of Kshs. 7,201,466.73. 4. THAT pending the hearing and determination of this application and the suit, this Honourable Court be pleased to order the interested party/2 nd Respondent to continue withholding and/or retain and or pay into the Court monies due to the 1st Respondent equivalent to the Claimants' claim herein. 5. THAT this Honourable Court be pleased to direct that any monies so withheld and/or retained and or paid into Court be applied towards satisfaction of any decree issued in favor of the Claimants. 6. THAT costs of this application be provided for. Claimants/Applicants’ Case 2 It is the Applicants' case that they were, at all material times, employees of the 1st Respondent, having worked as a Design, Engineering and Procurement (DEP) Construction Manager, Production Manager and Quantity Surveyor respectively. Page 2 of 22

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3 They aver that they were deployed to work on a construction project undertaken by the 1st Respondent on behalf of the Interested Party/2nd Respondent at Konza Technopolis, Machakos County. 4 The Applicants aver that they were abruptly terminated: the 1st and 2nd Claimants were terminated on 29 th February 2024; and the 3rd Claimant on 15th April 2024 in respect of the 3rd Claimant. 5 It is the Applicants’ case that the 1 st Respondent attributed the termination to cessation of the underlying contract following the Interested Party's alleged lack of funds. 6 Thet assert that the termination was effected without notice and without payment of their terminal dues. 7 The Applicants contend that upon termination they became entitled to terminal dues comprising salary arrears, notice pay, travelling allowances, severance pay and accrued leave. The 1 st Respondent, through written communication issued on various dates in 2024, expressly acknowledged owing them the following sums: the 1 st Claimant a gross pay of Kshs. 2,076,732.60, the 2 nd Claimant a gross pay of Kshs. 4,660,012.48, and the 3 rd Claimant a gross pay of Kshs. 464,721.65, cumulatively totalling Kshs. 7,201,466.73. 8 Despite the 1st Respondent’s acknowledgment, it is averred that the 1st Respondent has failed and/or refused Page 3 of 22

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to settle the admitted dues notwithstanding several demands for payment. 9 It is the Applicants' case that they have reliably learnt that funds under the main contract are now available and/or have been released to the Interested Party/2 nd Respondent for onward payment to the 1st Respondent, however, the 1st Respondent only proceeded to pay the unionizable employees, leaving the management employees' terminal dues unpaid. 10 They contend that the 1st Respondent is therefore in a position to settle their dues but has deliberately refused to do so. 11 They aver that it is within their knowledge that the Interested Party/2nd Respondent holds and/or controls monies payable to the 1st Respondent arising from the principal contract. 12 It is the Applicants case that there is a real and imminent risk that the Interested Party may release the said funds to the 1st Respondent, who may dissipate the same to the Applicants' detriment. 13 By way of the Supplementary Affidavit, the Applicants aver that the 1st Respondent, in its replying affidavit sworn on 27th April 2026, does not deny that it employed them on the Konza Technopolis project, nor that their employment was terminated on diverse dates in 2024, nor Page 4 of 22

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that their terminal dues remain unpaid nearly two years later. 14 It is their case that the sums sought to be deposited in court are neither speculative nor arbitrarily arrived at, but arise from tabulations prepared by the 1st Respondent's own Human Resource Department, duly signed by the Applicants and the Respondent's Human Resource Manager and authenticated by the Respondent's official stamp. 15 The Applicants aver that Tom Ndale, the deponent of the replying affidavit, was and remains the Human Resource Manager responsible for preparing, computing and authenticating the said terminal dues. They contend that the Respondent cannot now impugn figures prepared and authenticated by its own officer without impugning that officer's professional competence. 16 It is their case that there is no genuine dispute as to the existence and computation of the terminal dues, the only outstanding issue being the 1st Respondent's failure and/or refusal to settle the same. 17 The Applicants further aver that following their termination, a labour dispute involving the 1st Respondent, the 2nd Respondent and Kenya Concrete Structural Ceramics Times Woodply and Interior Designs Workers Union arose before the County Labour Office, Machakos, Page 5 of 22

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and that it was only after intervention by the 2 nd Respondent that unionised workers received part payment. 18 It is the Applicants case that this demonstrates the 1 st Respondent's lack of financial capability and/or its intentional refusal to honour workers' dues, including salaries for February 2024, being the month many of them were terminated. They rely on a letter dated 20th May 2026 from the Ministry of Labour and Social Protection said to show that the Respondent is yet to settle all unionisable workers' dues. 19 The Applicants also cite the ruling in Sobetra Uganda Limited v Stanbic Bank Kenya Limited & another [2025] KEHC 9077 (KLR), delivered on 26th June 2025, in which the 1st Respondent was found indebted to a bank in enforcement proceedings involving attachment of its property; they aver that this demonstrates the existence of other unsatisfied financial obligations and creditors pursuing recovery against it. 20 It is the Applicants' case that the 1 st Respondent is a foreign company whose director and local representatives are Italian nationals, and that this, taken together with its cessation of operations, disposal of assets and absence of known attachable assets within the jurisdiction, gives rise to a reasonable apprehension that the said persons may depart the jurisdiction and/or that the company may cease Page 6 of 22

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its presence in Kenya before determination of the suit, rendering any eventual decree difficult or impossible to enforce unless security is furnished. 21 They point, further, to a mass layoff and redundancy exercise affecting numerous employees whose dues remain unpaid, annexed as the Projected February 2024 Redundancy Dues, on which the Applicants appear at serial numbers 174, 173 and 18 respectively; as well as the 1st Respondent's continued disposal of its machinery and assets within the jurisdiction, conduct which they contend is consistent with an entity winding down operations and/or exiting the country. 22 On this basis, it is the Applicants' case that unless the admitted sums are secured by way of deposit before this Court, or alternatively the Interested Party is directed to withhold and pay into court monies due to the 1st Respondent, they stand to suffer irreparable financial loss and prejudice, as any decree ultimately issued in their favour may remain unsatisfied despite the admitted and long-outstanding nature of the dues. 23 They aver that no prejudice would be occasioned to the 1 st Respondent by such deposit, as any sums ultimately found not payable would be refunded, whereas the 1 st Respondent has placed no evidence before the Court of financial capacity, ongoing operations or attachable assets Page 7 of 22

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capable of satisfying the admitted dues or any eventual decree. 24 It is the Applicants' case that it is just and equitable that the subject funds be preserved pending the hearing and determination of the suit, and that the 1 st Respondent; or in the alternative the Interested Party/2 nd Respondent, be ordered to deposit security sufficient for the due performance of any decree that may ultimately be issued. Respondent/1st Respondent’s Case 25 In opposition to the application, the 1 st Respondent filed a replying affidavit dated 27 th April 2026, sworn by its Human Resource Manager, Tom Ndale. 26 The 1st Respondent contends that the application is misconceived, legally untenable, and an abuse of the process of the Court, and it opposes the same in its entirety. 27 The 1st Respondent avers that the orders sought by the Applicants are in the nature of attachment before judgment and/or security for due performance of a decree, which are extraordinary remedies granted only in the clearest of cases. 28 It is the 1st Respondent’s case that the Applicants must demonstrate a strong prima facie case, a real and Page 8 of 22

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demonstrable risk of dissipation of assets, an intention on the part of the Respondent to obstruct or delay execution of any decree that may be passed, and that it is in the interest of justice to grant such drastic relief. The Applicants have failed to satisfy any of these thresholds. 29 The 1st Respondent contends that the Applicants have deliberately mischaracterized internal computations as an admission of debt so as to improperly anchor the Application, and states that the figures referenced were merely preliminary internal computations subject to reconciliation, verification and contractual parameters, and were never intended to constitute a final, binding or unequivocal admission of liability, a fact the Applicants are well aware of, as the figures were neither agreed upon nor certified as final dues payable. 30 It is the 1st Respondent's case that, in any event, the existence of a disputed or even admitted claim does not, in law, justify the grant of orders for deposit of monies or attachment before judgment. 31 The 1st Respondent avers that the Applicants have placed no credible, cogent or specific evidence before the Court demonstrating an intention on its part to dissipate assets or defeat any prospective decree, and asserts that the allegations that it has no attachable assets, has ceased operations, or intends to abscond are bare, speculative Page 9 of 22

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and unsupported assertions made solely to sensationalize the Application. 32 It contends that it remains a lawful entity that has undertaken no act indicative of bad faith, fraud or intent to obstruct justice, and states that it is advised that mere apprehension, however strongly felt, does not meet the legal threshold for the grant of preservatory or attachment orders. 33 It is further the 1st Respondent's case that the Applicants' attempt to compel the Interested Party to withhold or deposit funds is legally untenable and fundamentally misconceived, there being no employment relationship between the Applicants and the Interested Party, and no contractual or legal entitlement on the part of the Applicants to any monies payable by the Interested Party to the Respondent. 34 It avers that the orders sought would effectively amount to attaching funds belonging to a third party who is not a judgment debtor, which is impermissible in law, and would unjustifiably interfere with lawful contractual relations between the Respondent and the Interested Party. 35 The 1st Respondent avers that the Applicants are, in substance, inviting the Court to convert an unproven claim into a secured and guaranteed recovery mechanism prior Page 10 of 22

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to trial, and to pre-determine liability and quantum at an interlocutory stage, contrary to established legal principles, the effect of which would be to prejudice its operations, undermine its contractual rights, and grant the Applicants the very reliefs sought in the main claim without a hearing. 36 The 1st Respondent avers that the balance of convenience tilts heavily in favour of refusing the application, that it stands to suffer severe and irreparable prejudice and unjustifiable disruption of its contractual and commercial operations should the orders be granted, whereas the Applicants would suffer no prejudice that cannot be remedied by an award of damages should they succeed at trial. 37 It is the 1st Respondent's case that the application is overreaching, speculative and legally unsustainable in that it seeks to freeze funds not yet due, bind a third party with no privity of contract, and secure a claim yet to be proven, and that the Applicants have demonstrated no exceptional circumstances warranting the invocation of such drastic remedies. 38 The 1st Respondent avers that it is advised that granting the orders sought would set a dangerous precedent whereby any claimant with an unproven claim could paralyze a respondent's affairs under the guise of Page 11 of 22

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preservation, and prays that the application be dismissed with costs. Interested Party/2nd Respondent’s Case 39 In opposition to the application, the 2 nd Respondent filed a replying affidavit dated 23 rd April 2026, sworn by its Projects Manager, Diego Rossi. 40 It is the 2nd Respondent's case that it does not owe any money to the 1st Respondent under the Subcontract for works at Konza Technopolis as alleged in the Statement of Claim, and that as a result, prayers 3, 4 and 5 cannot be granted as there is no money to withhold, retain, or pay into court under the Subcontract between the 1 st and 2nd Respondents, and on this basis alone the Application against it ought to be dismissed with costs. 41 Without prejudice to and in the alternative to the foregoing, it is the 2nd Respondent's case that the Applicants' case that their claim arises out of contracts of employment entered into between themselves and the 1 st Respondent. Therefore, there being no privity of contract between the Applicants and the 2 nd Respondent, they cannot claim payment from it as it is a stranger to the employer/employee relationship between the 1 st Respondent and the Applicants. 42 The 2nd Respondent avers that, for completeness, a trade dispute arose between it, Kenya Concrete Structural Page 12 of 22

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Ceramics Tiles Woodply and Interior Designs Workers Union, and Sobetra Uganda Limited and Sobetra Kenya Limited (collectively "Sobetra"), which dispute was presented before the County Labour Office in Machakos for conciliation. 43 It reiterates that after several meetings between the parties and the Conciliator, it was agreed that the 2 nd Respondent would provide Sobetra the money required to pay the union workers' salaries for the month of February 2024, the terms of which were captured in a Settlement Agreement dated 19th April, 2024. 44 It states that pursuant to the Settlement Agreement, it agreed, in good faith, to pay Sobetra a gross amount of Kshs. 19,682,311.00 to settle its employees' salary for the month of February 2024, and that clause 5 of the Settlement Agreement provided that upon transfer of that amount in full to Sobetra, it would be exonerated from any liability and any past, present and future demands by the workers and/or the union, and/or by Sobetra related to salaries. 45 The 2nd Respondent avers that Sobetra workers' final dues would be paid by Sobetra, while clause 6 provided that its payment of Sobetra's employees' salary for February 2024 did not transfer Sobetra's liabilities towards its workers to it. Page 13 of 22

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46 It is the 2nd Respondent's case that, in accordance with the terms of the Settlement Agreement, it made payment of Sobetra's employees' salary for February 2024 to Sobetra on 22nd April, 2024. 47 The 2nd Respondent in line with the express provisions of clauses 5 and 6 of the Settlement Agreement, it has no further legal obligation to make payments to former employees of Sobetra or to Sobetra concerning its employees' dues, whether past, present or future, it having been expressly agreed by the parties that the employees' final dues would be paid by Sobetra. 48 It contends that the totality of the foregoing is that the Applicants' application is misplaced and untenable in law and should be dismissed with costs to the 2 nd Respondent. Claimants/Applicants’ Submissions 49 The Applicants submitted that the issue for determination was whether the Court should order the 1 st Respondent to deposit Kshs. 7,201,466.73, being their admitted terminal dues, pending the hearing and determination of the suit. 50 It was submitted that Rule 68(3) of the Employment and Labour Relations Court (Procedure) Rules empowers the Court, where it is shown that satisfaction of a relief that may ultimately be granted may be defeated or frustrated, to impose conditions including the deposit of security. Page 14 of 22

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51 The Applicants argued that the jurisdiction is preservatory and is intended to ensure that the fruits of a successful judgment are not rendered incapable of enforcement. Although the principles under Order 39 of the Civil Procedure Rules may offer guidance, the Applicants submitted that Rule 68(3) permits the Court to consider the circumstances of the case in determining whether protective relief is warranted. 52 The Applicants submitted that the sum of Kshs. 7,201,466.73 was admitted, quantified and ascertainable, having been computed and authenticated by the 1 st Respondent’s Human Resource Department. It was contended that the 1st Respondent had not disputed the employment relationship, termination of the Applicants’ employment or the fact that the terminal dues remained unpaid. Therefore, the amount sought was capable of preservation pending determination of the suit. 53 In support of thereof, they cited Mbogo v Amitruck Limited [2025] KEELRC 2712 (KLR), wherein the Court demonstrated that where there is evidence of admitted dues, prolonged non-payment, redundancy, winding down of operations, and a real risk that a decree may ultimately remain unsatisfied, the Court should exercise its discretion towards granting protective orders by directing the deposit of security. Page 15 of 22

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54 They also relied on Liu Ching Liang v Webwave Electric Manufucturing (K) Co. Ltd & 2 others [2016] KEELRC 36 (KLR) for the proposition that the Court may grant security where the circumstances disclose a risk that satisfaction of a decree may be defeated or frustrated. 55 Further reliance was placed on John Kipkemboi Sum v Lavington Security Guards Limited [1998]eKLR, for the principle that such orders ought not to be granted lightly but upon clear evidence of circumstances capable of obstructing, delaying or frustrating satisfaction of a decree. 56 Applying these principles, the Applicants argued that there was a real and demonstrable risk of non-satisfaction of any decree. They pointed to the prolonged failure to pay the admitted dues, the mass termination following termination of the subcontract, the alleged substantial cessation of the Respondent’s Kenyan operations, disposal of machinery and assets, and the absence of evidence demonstrating ongoing projects or sufficient assets from which a decree could be satisfied. 57 It was submitted that these circumstances went beyond a mere apprehension of non-payment and closely mirrored those in Mbogo v Amitruck Limited Supra). Page 16 of 22

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58 On the Respondent’s foreign status, the Applicants submitted that while that factor, standing alone, would not justify an order for security, it was material when considered alongside the alleged cessation of operations, disposal of assets and continued failure to settle employee dues. They contended that there was consequently a reasonable apprehension that the Respondent could cease its presence in Kenya before satisfying any decree. 59 The Applicants further submitted that the order sought was preservatory and would occasion no prejudice to the Respondent, as the funds would remain subject to the Court’s control pending determination of the suit. Conversely, refusal of the order would expose the Applicants to substantial prejudice if they succeeded at trial but were unable to realise the fruits of their judgment. 60 The Applicants therefore urged the Court to find that the circumstances satisfied the threshold under Rule 68(3) and to order the 1st Respondent to deposit Kshs. 7,201,466.73 as security, together with costs and the other reliefs sought. 1st Respondent’s Submissions 61 On whether the Application met the legal threshold for attachment before judgment or security for the due performance of a decree, the 1st Respondent submitted that the orders sought were in the nature of attachment Page 17 of 22

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before judgment and constituted exceptional and drastic relief. 62 Relying on Order 39 of the Civil Procedure Rules, Abunda v Brandworld Communications Limited [2023] KEELRC 3004 (KLR), it was argued that such orders should only issue upon clear proof of circumstances demonstrating an intention to obstruct, delay or defeat execution. The Respondent submitted that the mere existence of an alleged or even admitted debt did not, without more, justify an order for security. 63 On whether the Applicants had established a prima facie case warranting the relief sought, the Respondent submitted that they had not. It contended that the Applicants’ case rested principally on terminal dues computations which were preliminary calculations, subject to reconciliation, internal HR verification, contractual considerations and approval. 64 The Respondent maintained that the figures were neither final nor binding and did not amount to an unequivocal admission of liability. Reliance was placed on Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) on the meaning of a prima facie case. 65 It was further submitted, with reference to Njeri (Suing on Behalf of the Estate of Everlyne Nyambura Ndungu) v University of Nairobi [2025] KEELRC 3573 (KLR), that disputes concerning Page 18 of 22

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the contractual basis and methodology of computation of employment dues are matters for determination at trial. 66 On whether there was credible evidence of dissipation of assets, concealment or an intention to defeat execution, the Respondent demonstrated. It submitted maintained that none that had the been Applicants’ allegations that the Respondent might abscond, dissipate assets or frustrate execution were speculative, unparticularised and unsupported by cogent evidence of any actual or intended disposal of assets for purposes of defeating a decree. The Respondent relied on Abunda v Brandworld Communications Limited (Supra) for the proposition that indebtedness or financial difficulty, without evidence of the requisite mischief, is insufficient to warrant attachment before judgment. 67 On whether the alleged terminal dues computations constituted an admission of liability, the Respondent submitted that they did not. It maintained that the computations were reconciliation and generated remained for subject internal to HR verification, reconciliation and approval. They were neither discharge vouchers nor settlement agreements. 68 The Respondent argued that an admission of liability must be clear and unequivocal and invoked section 24 of the Evidence Act, which provides that admissions are not conclusive proof of the matters admitted, though they may operate as estoppels in appropriate circumstances. It Page 19 of 22

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was therefore submitted that the dispute as to the validity, finality, quantum and methodology of the computations could only properly be resolved at trial. 69 On whether the Court could lawfully grant orders affecting funds allegedly held by the Interested Party in the absence of privity or judgment, the Respondent submitted that it could not. It was argued that the Applicants sought, in effect, to compel the Interested Party to withhold, retain or deposit funds into Court despite there being no judgment or other lawful basis for attaching such funds. 70 The Respondent further submitted that the Interested Party had confirmed that it owed no further sums to the Respondent, any previous payment obligation having been discharged under a settlement agreement. The orders sought against the Interested Party were therefore said to be legally untenable. 71 On whether granting the orders would predetermine the main suit at an interlocutory stage, the Respondent submitted that the effect of the Application would be to secure the entire claim before trial and compel payment or deposit of sums whose liability remained disputed. 72 It was argued that this would effectively grant the Applicants substantive relief before their claim had been tested through governing evidence. interlocutory Relying relief, on the including principles Giella v Cassman Brown & Co. Ltd, the Respondent urged the Page 20 of 22

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Court to exercise caution and avoid determining substantive rights at an interlocutory stage. 73 The 1st Respondent consequently submitted that the Applicants failed to satisfy the threshold for the exceptional relief sought, whether viewed as attachment before judgment or security under Rule 68(3) of the Employment and Labour Relations Court (Procedure) Rules. It maintained that the Application was founded on speculative allegations and disputed preliminary computations, and urged the Court to dismiss it with costs. 74 I have examined all the submissions and averments of the parties herein. The application before court is brought under the Constitution and section 3 and 12 of the Employment Act and Rule 45 of the Employment and Labour Relations Court Rules. Rule 45 of this court’s rules provides for filing and issuance of interlocutory applications. 75 The applicant has not set out the rules that allow them to pray for the depositing of the cash in court. However order 39 of the Civil Procedure Rules grants this court powers to issue orders directed against the defendant to furnish security for his appearance. This is granted if the court is satisfied that the defendant intends to obstruct or delay execution of a decree by disposing of or removing property. In such case, the court can order the defendant to furnish security or attach the property conditionally. Page 21 of 22

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76 In the current application, the applicant has not demonstrated that the respondents are disposing of their property nor removing it as the case may be. 77 Under order 39 of the CPR, the order for security can only issue if it is clear that the defendant intends to obstruct, delay or defeat execution which fact has not been demonstrated. 78 I do not find the prayer sought tenable at this stage. I decline to grant them accordingly and urge the parties to continue with their claim/cause. Costs shall be in the cause. Dated, Signed and Delivered virtually at Nairobi this 24th Day of September 2026. HELLEN WASILWA JUDGE Page 22 of 22

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