[2019] KEELRC 1011 (KLR)
The court found that the application for security for costs was weak both in fact and law. The Claimant had worked for less than two years and the claim for Kshs. 73 million was prima facie highly overstated. The Respondent, being a learning institution, should not have its finances encumbered by such a large sum,...
Source-derived case information.
- Citation
- [2019] KEELRC 1011 (KLR)
- Parties
- Applicant: Howard Omukami; Respondent: The Aga Khan Academy Mombasa
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 21 of 2019
- Procedural Posture
- Interlocutory Application / Ruling on Application for Security for Costs
- Outcome
- application dismissed
- Judges
- J Rika
- Legal Topics
- Unfair Termination, Security for Costs, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Howard Omukami
Applicant
The Aga Khan Academy Mombasa
Respondent
Procedural Posture
Interlocutory Application / Ruling on Application for Security for Costs
Legal Issues
- 1 Whether the Respondent should be ordered to deposit Kshs. 35,000,000 as security for the Claimant's claim pending determination of the suit.
- 2 Whether the application for security for costs has a legal and factual basis.
Ratio Decidendi
The court found that the application for security for costs was weak both in fact and law. The Claimant had worked for less than two years and the claim for Kshs. 73 million was prima facie highly overstated. The Respondent, being a learning institution, should not have its finances encumbered by such a large sum, as it would cripple its ability to operate and provide education. The court determined that there was no sufficient justification for requiring the Respondent to deposit Kshs. 35 million as security, and that the application lacked merit. Accordingly, the application was dismissed.
Court Disposition
application dismissed
Orders
- The application for security for costs is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYEMENT AND LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NUMBER 21 OF 2019
BETWEEN
HOWARD OMUKAMI..........................................................................CLAIMANT
VERSUS
THE AGA KHAN ACADEMY MOMBASA................................. RESPONDENT
RULING
1. The Claimant worked for the Respondent as a Senior School Mathematics Teacher, and was Head of Department Mathematics. He worked between 1st October 2017 and 15th May 2019.
2. He resigned as Head of Department on 15th February 2019. He states that the Respondent accepted his resignation, but purported that resignation applied to all positions held by the Claimant, including that of Senior School Mathematics Teacher.
3. Considering his contract to have been unfairly terminated, the Claimant filed this Claim on 10th April 2019, against the Respondent, asking for Judgment in the following terms:-
a) Lost wages for the period 16th May 2019 to 30th August 2039 at Kshs. 71,598,535.
b) Notice pay at Kshs. 177,913.
c) 12 months’ salary in compensation for unfair termination at Kshs. 2,044,956.
d) Certificate of Service.
e) Costs.
f) Interest.
4. Filed simultaneously with the Statement of Claim is an Application through which the Claimant seeks that the Respondent is ordered:
‘’Pending hearing and determination of the Suit, the Defendant [Respondent] do deposit security in Court and/or present/ execute a bank guarantee in the sum of Kshs. 35,000,000 as a security for the Claim subject hereof.’’
5. The Application is supported by the Affidavit of the Claimant, sworn on 10th April 2019.
6. It is opposed through Grounds of Opposition filed by the Respondent on 20th May 2019. The Respondent states, the Application has no legal basis; it is not supported in fact; and cited legal provisions are irrelevant.
7. Hearing took place on 11th June 2019.
The Court Finds:-
8. The Application is very weak on facts and the law. The Claimant is a Mathematics Teacher who has lost his job, through a contested resignation. He had worked for less than 2 years, earning a monthly gross salary of Kshs. 228,000. He has asked for compensation equivalent of 12 months’ salary and salary for the balance of his contract period. If successful, he stands to pocket Kshs. 73 million from the Respondent.
9. Why is it necessary to have security? Why a sum of Kshs. 35 million? The Respondent is a learning institution. It must not have its finances encumbered on account of a Claim filed in Court for unfair termination. No reasonable Court would direct that school fees totaling Kshs. 35 million, paid by School Children, is held in a Judiciary account, for an unknown period of time, awaiting the Claimant to establish that he was unfairly dismissed. The amount sought as security would strangulate Respondent’s operations and completely disable the Respondent in offering education to many pupils. In asking whether the Respondent is likely to honour decree, the Court has taken into account also, the likelihood of the Claimant obtaining a money decree for the amount pleaded in the Statement of Claim. The Claim appears prima facie, highly overstated. The Application is dismissed with no order on the costs.
Dated and delivered at Mombasa this 18th day of July 2019.
James Rika
Judge