Hassan v Capricorn Logistics Kenya Ltd & another (Cause E519 of 2026) [2026] KEELRC 2265 (KLR) (30 July 2026) (Ruling)

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT** **NAIROBI** (ON Makau J on 30th July 2026) **CAUSE NO. E519 OF 2026** **ABDULRAHIM HASSAN..............................................CLAIMANT** **-VERSUS-** **CAPRICORN LOGISTICS KENYA LIMITED..........1ST RESPONDENT** **DIAMOND TRUST BANK……………………………...2ND RESPONDENT** **RULING** 1. This ruling relates to three undated Motions filed by the Claimant against the Respondent. The first Motion was filed on 13th May 2026, seeking the following orders:- * 1. ***That this Application be certified as urgent and heard ex-parte in the first instance.*** 2. ***That a temporary injunction/freezing order be and is hereby issued restraining the 1st Respondent, by itself, its directors, or agents, from withdrawing, transferring, or dealing with any monies held in its accounts at Diamond Trust Bank Kenya Limited Account Numbers 0005484001 (KSHS) and 0005484003 (USD), specifically up to the sum of KES 11,570,000, pending the inter-partes hearing.*** 3. ***That the 2nd Respondent (Diamond Trust Bank) be and is hereby ordered to immediately freeze and preserve the said sum in account number 0005484001 and any account held in the name of CAPRICORN LOGISTICS KENYA LIMITED and file a certificate of balance within seven (7) days of service of this order.*** 4. ***That the 1st Respondent be restrained from removing any of its assets from the jurisdiction of this Honourable Court.*** 5. ***That this Honourable Court be pleased to issue any other and further orders to meet the ends of justice; and*** 6. ***That costs of this Application be provided for.*** 2. The 2nd Motion was filed on 26th May 2026 and it seeks the following orders 1. ***That this Application be certified as urgent and heard ex-parte in the first instance***. 2. ***That this Honourable Court be pleased to re-certify the Claimant primary Application dated 13th May 2026 as extremely urgent on a priority basis.*** 3. ***That pending the hearing and determination of this Application inter-partes or the scheduled hearing on 27th May 2026, this Honourable Court be pleased to review/vary its directions of 14th May 2026 and issue an interim ex-parte Mareva injunction restraining, prohibiting, and/or stopping the 1st Respondent, whether by itself, its directors, officers, employees, agents, or any person acting on its behalf, from withdrawing, transferring, charging, siphoning, or otherwise dealing with any funds held in Account Numbers 0005484001 (KSHS) nd 0005484003 (USD) maintained with the 2nd Respondent, DIAMOND TRUST BANK KENYA LIMITED, upto the sum of KES 11,570,000 (or the precise sum sought under the substantive claim), pending further orders of this Court.*** 4. ***That the 2nd Respondent be and is hereby ordered to immediately preserve and freeze funds to the tune of KES 11,570,000 (or the precise sum sought under the substantive claim), held in the 1st Respondents bank accounts Account Number 0134449001 and Account Number 0134449002 up to the value of the Claimants claim, pending the inter-partes hearing.*** 5. ***That the costs of this Application be provided for.*** 3. The third Motion was filed on 5th June 2026 and seeks the following order:- * 1. ***That this Application be certified as urgent and heard immediately.*** 2. ***That Judgment be entered for the Claimant against the 1st Respondent on admission in the sum of KES 2,000,000 (Kenya Shillings Two Million) being the admitted share capital contribution, and for such statutory benefits as have been expressly admitted by the 1st Respondent in their correspondence.*** 3. ***That the 1st Respondent be ordered to pay the said admitted sums to the Claimant within 30 days of this Judgment (order).*** 4. ***That the costs of this Application be borne by the 1st Respondent.*** 4. The Motions are supported by the Claimant’s affidavits and the Respondent opposed the three Motion vide a Replying Affidavit sworn on 9th June 2026 by its Country Manager Mr. Farhan Najham Quereshi. The parties filed skeleton submissions and highlighted them on 15th June 2026. **Arguments** 1. Mr. Okubasu learned counsel for the Claimant urged that the May 2026 Application seeks Mareva injunction while the June 2026 Motion is for entry of Judgment on admission. 2. He contended that there are two cheques vide which the Claimant paid for shares valued Kshs. 2,000,000, and the Respondent admitted the said payment by its email dated 12th March 2026. Therefore, he prayed for judgment for the said sum of Kshs. 2,000,000. 3. As for the Mareva injunction, Mr. Okubasu submitted that the Applicant has met the threshold for granting the said order as provided under order 39 rule 6 of the civil procedure Rules, 2010. He argued that the Respondent has assets within the jurisdiction of the court, namely liquid funds in account No. 0005484001 (KES) and 0005484003 (USD) at Diamond Trust Bank which is likely to be removed from the jurisdiction and leave the Claimant with a pyrrhic victory. He further submitted that the balance of convenience tilts in favour of granting the injunction. 4. He submitted that the Claimant has sued the Respondent for Kshs. 11,570,000 as his unpaid salary and other dues plus the said Kshs. 2,000,000 for shares. Therefore he urged the court to enter Judgment for the Kshs. 2,000,000 and grant Mareva injunction to preserve the balance of Kshs. 11,570,000 in the said accounts. 5. He noted that the Respondent is a company known world wide and as such it will not be prejudiced by the orders sought. He submitted that if the order is not granted, the Claimant will suffer irreversible injury as he will be left with judgment against a shell foreign company. 6. Mr. Banji, learned counsel for the Respondent fully relied on the Respondents replying affidavit and its skeleton submissions to oppose the three motions. In brief, the counsel submitted that the Applicant has not exhibited any evidence to confirm that the company is closing down its operations in this Country. Therefore he submitted that the Motions are activated with malice and ill-will. 7. The counsel submitted that the Claimant resigned from employment after causing the company massive losses to the tune of Kshs. 6,000,000 and resigned to evade pending audit. That the audit was done and a report was prepared revealing that the loss was due to the Claimants negligence, fabricates vouchers, fictitious vouchers and impropriety. 8. As regards the prayer for judgment on admissions, the counsel submitted that the Respondent is going to file a counter claim for the Kshs. 6,000,000 against the Claimant and therefore he prayed that the three Motions be dismissed with costs. **Analysis** 1. Having carefully considered the Motion, Affidavits and submissions, the issues for determination are:- 1. Whether judgment on admission of Kshs. 2,000,000 should be entered. 2. Whether Mareva injunction should issue as prayed. **Judgment on admissions** 1. There is no dispute that the Claimant has sued the Respondent for refund of Kshs. 2,000,000 which he paid for allotment of shares in the Respondent. The Claimant has filed copies of two cheques of Kshs. 999,999 each being shares contribution and the Respondent admitted that it received the said funds. It admitted the said sum vide its email dated 17th March 2026 where it stated as follows:- ***“ xxx Shareholding/capital contribution xxx*** ***We acknowledge your Kshs. 2,000,000 contribution towards a proposed share subscription. As no shares were allotted, the full amount will be refunded via bank transfer within 30 days.”*** 1. The Respondent failed to refund the said sum within the stated period of 30 days which expired on 17th April 2026 and the Claimant sued the Respondent on 13th May 2026. The Respondent contended that it intends to file counterclaim against the Claimant because he caused the company a loss of Kshs. 6,000,000. That has not happened as at now and in any event the counterclaim will be subject to proof therefore I proceed to grant the order for entry of judgment on admissions in the sum of Kshs. 2,000,000. The same will attract interest at court rate from date of filing the suit till payment in full. **Mareva injunction** 1. The Applicant submitted that he has met the threshold for granting Mareva injunction. The relevant law is Order 39 Rule 5 of the Civil Procedure Rules 2010, which provides that:- ***“ (1) Where at any stage of a suit the court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him-*** * 1. ***Is about to dispose of the whole or any part of his property;*** 2. ***Is about to remove the whole or any part of his property form the local limits of the jurisdiction of the court;*** ***The court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.*** ***(2) The Plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof.*** ***(3) The court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.”*** 1. The Mareva injunction is an interlocutory injunction that freezes the property of a defendant before execution and therefore, it is expected that the Applicant will meet the following:- 1. A good/arguable case. 2. Respondent has assets within the jurisdiction of the court. 3. There is risk of dissipation of the assets before a decree can be satisfied leaving the Applicant with a pyrrhic victory. 4. The balance of convenience is in favor of granting the injunction. 2. In the instant case, the Claimant observed that the Respondent is a foreign company the only assets it has in the Country is money in 2nd Respondent’s Bank. The Respondent admitted that its directors are foreigners but averred that there is no law that prohibits companies with foreign directors from operating in Kenya. 3. Having carefully considered the evidence before the court I am not satisfied that the Respondent intends to remove its assets from the Country with view to defeat or frustrate the prospective decree of this court. The Applicant has not placed before the court clear evidence that the Respondents intention to cease operations in Kenya or to remove its assets from the jurisdiction of this court. 4. Having said that, and in view of the Judgment entered on admissions, the justice of the cause requires that I direct the Respondent to deposit, in this court, Kshs. 2,000,000 within fourteen days of today as security for payment of the admitted claim pending determination of the suit or until further orders of the court. **DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 30TH DAY OF JULY, 2026.** **ONESMUS MAKAU** **JUDGE** **Appearance:** Anyango for Claimant Awinja for Respondent