[2014] KEELRC 206 (KLR)
The court found that the applicants failed to provide credible or sufficient evidence to support their apprehension that the respondents intended to dispose of assets or leave the jurisdiction to defeat the payment of terminal benefits. The applicants' allegations were deemed bare and unsupported by documentary...
Source-derived case information.
- Citation
- [2014] KEELRC 206 (KLR)
- Parties
- Applicant: Macmillan Madato; Applicant: Naomy Sayoh; Applicant: Paul Martin; Applicant: Dennis Shahonyo; Applicant: Brilliana Faith; Applicant: Simon Mathaka; Respondent: Zhao Jian; Respondent: Chiken Foodstuff Suppliers Ltd t/a Family Restaurant
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 946 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Injunctive Relief and Security for Terminal Benefits
- Outcome
- application dismissed with costs
- Legal Topics
- Terminal Benefits, Injunctive Relief, Prejudgment Attachment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Macmillan Madato
Applicant
Naomy Sayoh
Applicant
Paul Martin
Applicant
Dennis Shahonyo
Applicant
Brilliana Faith
Applicant
Simon Mathaka
Applicant
Zhao Jian
Respondent
Chiken Foodstuff Suppliers Ltd t/a Family Restaurant
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Injunctive Relief and Security for Terminal Benefits
Legal Issues
- 1 Whether the applicants have established sufficient grounds for an order restraining the respondents from disposing of business assets before payment of terminal benefits.
- 2 Whether the applicants are entitled to an order for the respondents to deposit the claimed terminal benefits in court pending determination of the suit.
Ratio Decidendi
The court found that the applicants failed to provide credible or sufficient evidence to support their apprehension that the respondents intended to dispose of assets or leave the jurisdiction to defeat the payment of terminal benefits. The applicants' allegations were deemed bare and unsupported by documentary evidence. The court emphasized that prejudgment attachment is a drastic remedy that should be exercised sparingly and only upon a proper evidentiary basis. As such, the court declined to grant the orders sought and dismissed the application with costs.
Court Disposition
application dismissed with costs
Orders
- The application for injunctive relief and deposit of terminal benefits is dismissed with costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT AT NAIROBI
CAUSE NUMBER 946 OF 2014
BETWEEN
MACMILLAN MADATO…………………………………….1ST CLAIMANT/APPLICANT
NAOMY SAYOH……………………………………………….2ND CLAIMANTAPPLICANT
PAUL MARTIN……………………………………………….3RD CLAIMANT/APPLICANT
DENNIS SHAHONYO………………………………………4TH CLAIMANT/APPLICANT
BRILLIANA FAITH…………………………………………..5TH CLAIMANT/APPLICANT
SIMON MATHAKA…………………………………………..6TH CLAIMANT/APPLICANT
VERSUS
ZHAO JIAN…………………………………….…………………………1ST RESPONDENT
CHIKEN FOODSTUFF SUPPLIERS LTD T/A
FAMILY RESTAURANT………………………………………………..2ND RESPONDENT
RULING
1. By a motion dated 6th June, 2014, the applicants seeks from the Court an order directed to the Respondent to be restrained from closing down, selling or changing ownership of its business prior to paying the Claimants/Applicants terminal benefits. The applicants further seek an order that the Respondent deposits the sum of Kshs.1,565,661/= being their terminal benefits in Court.
2. In support of the application the applicants aver that the 1st Respondent being a foreign national may go out of jurisdiction without paying the terminal benefits, the subject matter of the suit herein.
3. The Respondent has refuted the application and has denied by way of affidavit that he is about to flee jurisdiction and that he has been in the country for the past 9 years and has since acquired permanent residence status. The respondent further depones that he has invested heavily in the country hence has no intentions of leaving jurisdiction for good.
4. Whereas the Respondent has attempted to provide evidence to demonstrate his attachments to the country and has by way of deposition vehemently refuted the applicants’ allegations, the applicants have merely made bare allegations not backed by any documentary evidence of the source of their apprehension that the Respondent is about to sell and leave jurisdiction.
5. Prejudgment attachment deprives the defendant of his property rights prior to adjudication on merits. For this reason it should not issue without a careful and proper analysis of the basis upon which it has been requested by the applicant. This analysis can only be done if the applicant presents to the Court credible and sufficiently probable material that the defendant with the intention of defeating the outcome of the suit is dissipating his assets within the realm and or about to leave jurisdiction. It is a jurisdiction which the Court ought to exercise sparingly and in a proper case only.
6. In the case before me, I am not persuaded by the material before me that this order is merited and hereby decline to issue the same with the consequence that the application is hereby dismissed with costs.
7. It is so ordered.
Dated at Nairobi this 16th day of October 2014
Abuodha J. N.
Judge
Delivered this 16th day of October 2014
In the presence of:-
…………………………………………………………………………for the Claimant and
……………………………………………………………………………for the Respondent.
Abuodha J. N.
Judge