https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1659

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAIROBI** **CAUSE NO. E631 OF 2025** **ARGWINGS WANYONYI SAMUEL NYONGESA.....................CLAIMANT** **VERSUS** **KNAUF (KENYA) LIMITED…….……………………………..RESPONDENT** **RULING** 1. Before Court are two Notice of Motion applications, the first being one dated 10th February, 2026, by the Claimant and the second dated 30th March, 2026, by the Respondent. In the first application by the Claimant/Applicant, and which is brought pursuant to Rule 73 (2) Employment & Labour Relations Court (Procedure) Rules 2024, and Order 39 Rule 5(1) CivilProcedure Rules 2010, the prayers sought are as follows: - 1. Spent 2. THAT an Order do issue directing the Respondent to furnish security to satisfy the decree/award that may be passed herein, cumulatively estimated at the sum of KShs.39,220,695 before judgment. 3. THAT an Order do issue directing the Respondent to show cause why it should not furnish security for KShs. 39,220,695, the amount claimed in the suit. 4. THAT an Order do issue attaching Motor Vehicles registration numbers KCM 106L Toyota Axio and KOH 740C Nissan Caravan NV, both valued at KShs. 1,550,000 and registered in the Respondent's name before judgment herein. 5. THAT an Order do issue directing the National Transport and Safety Authority (NTSA) to hold registration of any Transfer of Motor Vehicles registration numbers KCM 106LToyota Axio and KOH 740C Nissan Caravan NV registered in the Respondent's name, before judgment herein. 6. THAT an Order do issue directing the Registrar of Companies to reject any application to deregister and/or close the Respondent Company lodged by the Respondent pending the hearing and determination of this Application and the Suit herein. 7. THAT the costs of this Application be in the cause 2. The application is supported by grounds on the face thereof and the affidavit of the Applicant, who contends that the Respondent terminated his employment in July 2025 on grounds of redundancy, citing closure of its business operations, and has since discovered that the Respondent is in the process of disposing of its only known assets in Kenya, namely motor vehicles registration numbers KCM 106L Toyota Axio and KDH 740C Nissan Caravan NV. 3. The Claimant contends that the Respondent, being a subsidiary of a Germany based parent company, is disposing of the assets with the intention of obstructing or delaying the execution of any decree that may be issued by the Court. 4. The Claimant therefore argues that unless orders for attachment before judgment are granted, the suit will be rendered nugatory. He maintains that it is fair and just for the Court to grant the orders sought. 5. The Respondent opposed the Motion vide a Replying affidavit sworn by Rose Mero on 23rd February, 2026. 6. The Respondent argues that the Claimant’s application is incompetent, premature, and unsupported by law. It argues that Rule 73(2) of the Employment and Labour Relations Court (Procedure) Rules applies only after judgment, yet no decree or order exists in this matter. 7. The Respondent further contends that the request for security of KES 39,220,695 amounts to condemning it unheard and prematurely determining the merits of the claim before trial. It also maintains that the Claimant has not demonstrated any intention by the Respondent to obstruct execution of a future decree, and denies allegations that it has ceased operations in Kenya. 8. The Respondent contends that the redundancy process and restructuring commenced before the suit was filed and were lawfully communicated to the Claimant. It maintains that it remains a going concern and that the sale of its motor vehicles was a legitimate commercial transaction undertaken in the ordinary course of business. 9. The Respondent further accuses the Claimant of failing to facilitate the transfer of the vehicles through e-Citizen and argues that no evidence has been produced to show that the asset disposals were intended to defeat execution of a future decree. 10. The Respondent contends that the Claimant’s request for orders restraining the transfer of the Respondent’s motor vehicles through the National Transport and Safety Authority constitutes an unjustified interference with the Respondent’s business operations. 11. The Respondent further states that, despite termination of employment and repeated requests, the Claimant has failed and/or refused to hand over the Respondent’s credentials, including E-Citizen account login details. It avers that the Claimant persistently imposed irrelevant conditions before surrendering the credentials and continued to withhold them even after the requested information had been provided. 12. The Respondent states that the Claimant’s refusal to hand over official credentials has impeded access to the Respondent’s systems and accounts. It further argues that the prayers seeking restrictions against the Registrar of Companies are baseless, as no deregistration is intended, and that certain prayers fall outside the Court’s jurisdiction under Section 12 of the Employment and Labour Relations Court Act. 1. The Respondent maintains that the Claimant’s allegations are speculative, unsupported by evidence, and insufficient to justify interference with its property rights, business operations, or to compel provision of security for the claim. 2. The Respondent contends that the application is frivolous, speculative, and intended to pressure it into a settlement despite the existence of triable issues raised in its Response. It denies any intention to obstruct justice and argues that the orders sought, particularly for security before judgment, are punitive, unsupported by evidence, and would unjustly burden its business and right to access justice. The Respondent therefore urges the Court to dismiss the Application with costs. **The Motion dated 30th March, 2026**. 1. The second application is by the Respondent and is dated 30th March, 2026 and brought pursuant to Rule 45 (1) of the Employment and Labour Relations Court (Procedure) Rules 2024, Order 6 Rules 2, 3 and 6 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, and Section 12 (3) (viii) of the Employment and Labour Relations Court Act. The Respondent prays for the following reliefs: - 2. This Honourable Court be pleased to issue an order directing the Claimant to effect service of all pleadings, correspondence or any other court documents in this suit exclusively on Jared Kangwana & Co Advocates LLP t/a Clyde & Co (Clyde & Co), who are the Respondent’s duly appointed advocates on record, in accordance with the Memorandum of Appearance dated 30 September 2025 (the Memorandum of Appearance). 3. This Honourable Court be pleased to issue an order declaring that any future service effected by the Claimant and/or its duly appointed legal representatives contrary to the order in (d) above and in violation of the rules of service be deemed invalid. 4. This Honourable Court be pleased to issue an order directing the Claimant to surrender to the Respondent all the Respondent’s credentials, including usernames, passwords, and two-factor authentication details on the e-Citizen and/or National Transport and Safety Authority (NTSA), and any other platforms linked to his name, personal email address and/or personal phone number. 5. Costs of this application be provided for. 6. The crux of the motion is that after the Respondent entered an appearance through its advocates and notified the Claimant of the proper address for service, the Claimant nonetheless continued serving court documents directly upon the Respondent and third parties despite repeated reminders. 7. The Respondent contends that this conduct is prejudicial and disrupts the orderly conduct of the proceedings. It is further averred that during his employment as Finance and Administration Manager, the Claimant was the custodian of the Respondent’s credentials for platforms including e-Citizen, NTSA, and QuickBooks, and that he has failed and/or refused to surrender the login details despite repeated requests following the termination of his employment. 8. The Respondent further avers that the Claimant has persistently declined to surrender the requested credentials, instead imposing irrelevant conditions before compliance. It is the Respondent’s position that the Claimant’s refusal has disrupted its operations by denying access to key platforms and impairing its ability to manage official systems and process financial and tax-related transactions through QuickBooks. 9. The Respondent further states that it was forced to incur substantial time, cost, and managerial effort, including engaging technical support and the software provider, in order to regain control of its financial management system. 10. The Respondent contends that the Claimant’s conduct is retaliatory and stems from its refusal to accept what it describes as an exaggerated and unjustified settlement proposal during separation negotiations. 11. The Respondent further asserts that the Court has inherent jurisdiction to grant the orders sought in order to ensure justice and orderly conduct of the proceedings. It maintains that the application has been made in good faith, that the Claimant will suffer no prejudice if the orders are granted, and that it is fair and just for the Court to allow the application. 12. The Claimant opposed the motion through grounds of opposition dated 13th April, 2026. The Claimant argues that the application is incompetent and an abuse of the court process, arguing that the applicable procedural rules do not prohibit service of pleadings directly upon a party and that the Respondent’s Memorandum of Appearance did not properly provide an email address for electronic service. 13. The Claimant further contends that the orders sought would violate his constitutional right to privacy under Article 31(c) of the Constitution and the protections afforded under the Data Protection Act. He avers that he used his personal details on the NTSA and QuickBooks platforms only because the Respondent failed to provide the necessary contact and payment information required for operation of the accounts, and that he would later seek reimbursement from the Respondent. 1. The Claimant denies any involvement with the Respondent’s alleged e-Citizen account and maintains that the Respondent has already regained access to QuickBooks, rendering the complaint moot. He therefore argues that the Respondent’s application is scandalous, oppressive, and intended to infringe upon his privacy rights, and urges the Court to dismiss it with costs. 2. The two motions were canvassed by way of written submissions. Both parties filed submissions, which have been duly considered. **Determination** 1. The issue for determination in the first motion is whether the Claimant has met the legal threshold for orders of security and attachment before judgment. 2. In the second motion, the issue concerns the propriety of service of pleadings and whether the Court should compel surrender of digital credentials allegedly linked to the Respondent’s operational systems. **The Claimant’s Motion dated 10th February, 2026** 1. The Claimant in his application seeks security and attachment before judgment under Order 39 Rule 5 of the Civil Procedure Rules. 2. Generally, orders for attachment before judgment are drastic in nature and are not intended to convert a contested claim into a secured debt before trial. 3. The Applicant must, by law, demonstrate, through cogent evidence, that the Respondent intends to obstruct or delay execution of a future decree by disposing of, removing, or dissipating assets. 4. In ***Kuria Kanyoko t/a Amigos Bar and Restaurant v Francis Kinuthia Nderu & Others [1988] eKLR***, the Court held that attachment before judgment is a drastic remedy that ought not issue lightly and that there must be clear evidence of intention to obstruct or delay execution. Similarly, in ***Braeburn Limited v Gachoka & Another [2007] 2 EA 67,*** the Court emphasized that mere apprehension or suspicion is insufficient and that the Applicant must establish a real danger that execution will be defeated. 5. Further, the Court of *Appeal in* ***Kuria Kanyoko t/a Amigos Bar & Restaurant v Francis Kinuthia Nderu & Others (supra)*** warned against using attachment before judgment oppressively or as a means of coercing settlement before liability is established. 6. The Claimant’s case is principally founded on the allegation that the Respondent is restructuring its operations and disposing of motor vehicles allegedly constituting its only known assets in Kenya. The Respondent has, however, explained that the redundancy process and restructuring predated the suit and formed part of ordinary commercial operations. 7. Further, no evidence has been placed before Court demonstrating that the disposal of the vehicles was fraudulent, clandestine, or undertaken with the intention of defeating execution. 8. In my considered view, the mere fact that a company restructures operations or disposes of assets in the ordinary course of business cannot, without more, justify attachment before judgment. ***In Mareva Compania Naviera SA v International Bulkcarriers SA [1980] 1 All ER 213***, the Court cautioned that freezing or preservatory orders should only issue upon clear evidence of risk of dissipation intended to frustrate execution. 9. It is also not disputed that the Respondent remains a registered entity and has denied any intention to deregister or abscond from the court’s jurisdiction, and the Claimant has not exhibited evidence showing imminent deregistration, transfer of assets outside the jurisdiction, or concealment of property. 10. In the circumstances of his case, the Court is not persuaded that the threshold under Order 39 Rule 5 has been satisfied. 11. Similarly, the prayer that NTSA be directed to halt the transfer of the motor vehicles and the prayer seeking orders against the Registrar of Companies are equally unsupported by evidence. 12. Courts do not issue anticipatory injunctive orders founded on speculation. ***In Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR***, the Court of Appeal reiterated that injunctive relief must be grounded on established facts and not conjecture. 13. Additionally, an order compelling the furnishing of security in the colossal sum of KShs. 39,220,695 at an interlocutory stage would effectively amount to prejudging the dispute before the evidence on liability and quantum is heard. Such an order no doubt would offend the principle that parties should be heard fully before adverse financial obligations are imposed. 14. In the premises, I find and hold that the Claimant has failed to establish sufficient basis for the grant of security or attachment before judgment, and the Motion dated 10th February, 2026 is therefore without merit and is dismissed with costs in the cause. **The Respondent’s Motion dated 30th March, 2026** 1. The Respondent’s application seeks directions on service of pleadings and orders compelling surrender of credentials. **Service of Pleadings** 1. The Respondent contends that despite entering an appearance through advocates, the Claimant continues serving pleadings directly upon it and through third parties. 2. Order 9 Rule 5 of the Civil Procedure Rules and Rule 29 of the Employment and Labour Relations Court (Procedure) Rules contemplate that where a party has appointed advocates, service should ordinarily be effected through the advocates on record. 3. The rationale for this principle was explained in ***Kenya Commercial Bank Ltd v Kenya Planters Co-operative Union [2010] eKLR***, where the Court held that once advocates come on record, all correspondence and service should be routed through them to ensure orderly conduct of proceedings. 4. The Court agrees that continued direct service upon a represented party may occasion confusion and undermine orderly litigation management. However, the Court also notes the Claimant’s contention that the Memorandum of Appearance did not adequately specify electronic service details. 5. In the interests of orderly proceedings and in line with the procedural rules, the Court finds it appropriate to direct that all future pleadings and correspondence be served through the Respondent’s advocates on record. **Surrender of Credentials** 1. The Respondent further seeks orders compelling the Claimant to surrender usernames, passwords, and authentication details linked to e-Citizen, NTSA, and related platforms. 2. The Respondent seeks disclosure of credentials allegedly linked to the Claimant’s personal email address, telephone number, and authentication systems, which the Claimant contends he utilized because the Respondent failed to provide institutional credentials. 3. The Court cannot, at an interlocutory stage, compel disclosure of personal passwords, personal authentication credentials, or private access details without a clear evidentiary and legal framework safeguarding privacy and data protection rights. 4. The Respondent has also admitted that it has already regained access to QuickBooks through technical intervention. The Court is therefore not satisfied that the extraordinary orders sought, compelling the surrender of passwords and authentication details, should issue at this stage. 5. Consequently, prayer (i) of the Motion succeeds only to the extent that future service shall be effected through the Respondent’s advocates on record. 1. The other prayers under this motion are declined. 2. Each party shall bear its own costs in respect of the Respondent’s Motion dated 30th March, 2026. 3. Orders accordingly. **SIGNED, DATED, AND DELIVERED AT NAIROBI THIS 18TH DAY OF JUNE, 2026** **C. N. BAARI** **JUDGE** **Appearance:** Ms. Mubangi present for the Claimant Mr. Owiti present for the Respondent Ms. Esther S - Court Assistant