[2018] KEELRC 2064 (KLR)
The court found that the property in question was not pleaded or anchored in the substantive suit, and therefore, the application for injunctive relief was made in vacuo and was incompetent. The court applied the principle that interlocutory injunctive relief must be based on a substantive claim, as established in...
Source-derived case information.
- Citation
- [2018] KEELRC 2064 (KLR)
- Parties
- Applicant: Banking, Insurance and Finance Union; Respondent: National Bank of Kenya Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 846 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Judges
- MSA Makhandia
- Legal Topics
- Interlocutory Injunctions, Pleadings and Particulars, Employment Disputes, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Banking, Insurance and Finance Union
Applicant
National Bank of Kenya Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the court can grant injunctive relief in respect of property not pleaded in the substantive suit.
- 2 Whether the applicant established a prima facie case for grant of interlocutory injunction.
- 3 Whether the application is competent in the absence of a substantive claim relating to the property.
Ratio Decidendi
The court found that the property in question was not pleaded or anchored in the substantive suit, and therefore, the application for injunctive relief was made in vacuo and was incompetent. The court applied the principle that interlocutory injunctive relief must be based on a substantive claim, as established in Kihara v Barclays Bank of Kenya Ltd. Even if this were not the case, the applicant failed to establish a prima facie case for the grant of an injunction, as there was no evidence of illegality, unconscionability, or unfairness in the respondent's actions, nor was there sufficient disclosure regarding the servicing of the loan or any legal impediment to the sale. The court also...
Court Disposition
application dismissed
Orders
- The application dated 29 March 2018 is dismissed with no order as to costs.
- The file to be mentioned before Onyango PJ for further directions as to expeditious hearing.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 846 OF 2014
BANKING, INSURANCE AND FINANCEUNION CLAIMANT
v
NATIONAL BANK OF KENYA LTD RESPONDENT
RULING
1. On 29 March 2018 the Claimant Union moved Court under certificate of urgency seeking orders
1. ….
2. THAT this Honourable Court do issue interim ex-parte orders restraining the Respondent by themselves or their recognised agents or principals from selling and or attempting to sell by public or private auction the property of Donald Mungoma Mtana of P.O. Box 87046-80100 Mombasa L.R. NO. MN/1/11087 MOMBASA together with all the buildings and improvements thereon situated at Lakeview Estate, Bamburi, Mombasa County until the hearing and determination of this application inter-partes.
3. THAT this Honourable Court do issue an order prohibiting the Respondent themselves or by recognised agents or principals from selling or attempting to sell by public or private auction the above named property until the Claim in Cause No. 846 of 2014 which is currently pending hearing and determination before this Court is disposed of.
4. THAT this Honourable Court do award costs of this application in favour of the Applicant.
2. When the application was placed before the Duty Court on the same day, it allowed order 2 and scheduled the application for inter partes hearing on 9 April 2018, before the Principal Judge.
3. When the application was placed before me as scheduled, there was an affidavit attesting to service upon the firm of Oraro & Co, the advocates on record for the Respondent.
4. Despite acknowledging the service, the Respondent was not represented.
5. Being satisfied with the service, the Court allowed the application to be urged and it heard brief oral submissions from the Union. The Court reserved ruling to today.
6. The Court has looked at the record, the application and considered the oral submissions made by the Union.
7. The initial Memorandum of Claim filed in Court on 21 May 2014 did not plead any dispute in regard to the property now in contention.
8. On 23 October 2015, the Union filed an Amended Memorandum of Claim. It introduced properties LR No. Uasin Gishu/Kaptagat/410 and Nandi/Kamobo/4474 owned by Esther Koskei Rono and Ngong/Ngong/54262 owned by Titus Ongeri Matoke into the proceedings.
9. On 1 August 2017, another Amended Memorandum of Claimwas lodged in Court.
10. The second Amended Memorandum of Claim did not introduce the question of the property now in issue in the present application as one of the issues for the Court’s determination (there are several motions on record seeking injunctive orders in relation to other properties which are also not listed in the Statement(s) of Claims).
11. Therefore, the order now sought by the Union is in respect of a property not anchored/pleaded in the substantive suit.
12. The order sought is sought in vacuo.
13. On that ground, and endorsing and applying the principle stated by Ringera J (as he then was ) in Kihara v Barclays Bank of Kenya Ltd (2001) 2 EA 420 (CAK) that interlocutory injunctive relief should be anchored in a substantive suit, I find the application incompetent.
14. And if I were wrong on that conclusion, I would still have dismissed the application on the grounds that the Union has not established a prima facie case to warrant injunctive relief sought.
15. The ground advanced in support of the application was merely that the sale of the property would pre-empt the outcome of the pending Cause.
16. There was disclosure that there was a loan facility which was being regularly serviced, but how regular the servicing was (at staff rates if at all) or any legal impediments to the action by the Respondent were not stated.
17. The Union did not even attempt to suggest that the Respondent’s action was unlawful or unconscionable so as to bring it within the ambit of unfairness within an employment relationship.
18. On another score, I note that previous attempts by the Union to restrain sell of the other properties which were introduced into the proceedings through the Amendments were declined by the Court on 6 May 2016.
19. The Court notes that the Union omitted to make this disclosure but instead chose to disclose only interim orders granted on 25 November 2015 and 17 June 2016.
20. The application dated 29 March 2018 is dismissed with no order as to costs.
21. Because Onyango PJ has substantially dealt with the procedural aspects of this Cause, I direct that the file be mentioned before her for further directions as to the expeditious hearing thereof.
Delivered, dated and signed in Nairobi on this 13th day of April 2018.
Radido Stephen
Judge
Appearances
For Claimant Union Mr. Odero, National Organising Secretary
For Respondent Oraro & Co. Advocates (did not appear)
Court Assistant Lindsey