[2014] KEELRC 142 (KLR)
The court found that the claimants failed to provide any evidence to substantiate their fears that the respondent would close down or abscond from the court's jurisdiction. Mere allegations, without proof, are insufficient to justify an order for security. The respondent demonstrated ongoing business operations and...
Source-derived case information.
- Citation
- [2014] KEELRC 142 (KLR)
- Parties
- Applicant: Benedict Muindi Maithya & 11 Others; Respondent: Ashok Umakanti J. Dave t/a Daves Catering
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 958 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Security Deposit
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Unlawful Termination, Terminal Benefits, Security for Judgment, Procedural Fairness, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benedict Muindi Maithya & 11 Others
Applicant
Ashok Umakanti J. Dave t/a Daves Catering
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Security Deposit
Legal Issues
- 1 Whether the claimants are entitled to an order for deposit of security by the respondent pending determination of the main claim.
- 2 Whether the termination of the claimants' employment was procedurally fair and in compliance with Section 41 of the Employment Act, 2007.
- 3 Whether the claimants have demonstrated sufficient risk of the respondent absconding or dissipating assets to warrant the security order.
Ratio Decidendi
The court found that the claimants failed to provide any evidence to substantiate their fears that the respondent would close down or abscond from the court's jurisdiction. Mere allegations, without proof, are insufficient to justify an order for security. The respondent demonstrated ongoing business operations and provided evidence of Kenyan nationality for its director, further undermining the claimants' assertions. In the absence of proof of risk of dissipation or absconding, the balance of convenience favored the respondent. The application for deposit of security was therefore dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for deposit of security is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA
AT NAIROBI
CAUSE NO. 958 OF 2014
(Before D.K.N. Marete)
BENEDICT MUINDI MAITHYA& 11 OTHERS ..…….…...………….…CLAIMANTS
Versus
ASHOK UMAKANTI J. DAVE T/A
DAVES CATERING……….…....……….……………………….………….RESPONDENT
RULING
This is an application by way of Notice of Motion dated 10th June, 2014 and brought to court under a certificate of urgency of the same date. It is premised on the supporting affidavit of Robert Muthenya sworn on the same date. It seeks the following orders;
The Respondent has dismissed the Claimants with effect from 18th April, 2014.
The said dismissal does not address the payment of Claimants terminal benefits.
The Respondent has also not served the claimants with any notice to show cause why their services should not be terminated as mandatorily required by the provisions of Section 41 of the employment Act, 2007.
The claimants/Applicants are apprehensive that the Respondent may run away without paying them their entitlements which may cause them irreparable loss and damage.
That unless the Honourable Court urgently intervenes and issues the orders sought the Claimants will suffer irreparably.
The respondent on the other hand opposes the application and deems the same frivolous, lacking in merit and also brought out in bad faith. The respondent further avers that the applicants’ employment was never terminated but they staged a sitin and refused to work. This was without notice. Two of these, the 4th and 6th claimants have since received resumed work after negotiations for forgiveness and pardon. They further posit that the respondent is a going concern and there is no intention of closing down the same. The claim and prayer for a deposit of security as made would be punitive and unwarranted.
The claimant/applicants case is that the 12 employees have been employees of the respondent having been employed on different dates and positions as set out in the claim. The applicants’ services were terminated on or about the 18th April, 2014 on grounds that their continued engagement was no longer required. They further contend that the termination did not take into account their terminal dues which issue was raised by their counsel but has not been adequately addressed by the respondents. The respondents, it is feared, are likely to close their business and run away from the jurisdiction of this court thus evade payment of dues to the applicants. This justified the prayer for orders for a deposit of security on the part of the claimants/applicants.
The applicant has not adduced any evidence in support of the application. They merely allege that the respondent is likely to close down and the directors run out of this court’s jurisdiction. There is nothing whatsoever in support of this.
The respondents in their replying affidavit adduce evidence of Kenyan nationality for Umakant J.M. Dave, one of its Directors and also on agreement between the respondent and Nairobi Gymkana on the terms of the respondents catering enterprise. This as averred by the respondent commences on 20th February, 2013 and lasts two years.
The matter in the absence of proof and substantiation by the applicant tilts in favour of the respondents. I am therefore inclined to dismiss the application with costs to the respondents.
Delivered, dated and signed this 7th day of November, 2014.
D.K. Njagi Marete
JUDGE
Appearances
Mr. Nyabena instructed by Nyabena Nyakundi & Company Advocates for the Claimant/Applicant.
Mr. Masinde instructed by Boniface Masinde & Company Advocates for the Respondents.