[2021] KEELRC 709 (KLR)
The court found that the applicant failed to present any documentary evidence of illegal transactions or fraud in the union's bank accounts. Without such evidence, the threshold for granting preservation orders was not met. The court emphasized that preservation orders are extraordinary remedies that require a clear...
Source-derived case information.
- Citation
- [2021] KEELRC 709 (KLR)
- Parties
- Applicant: Walter Biegon; Respondent: Union of Kenya Civil Servants; Respondent: Tom Odege; Respondent: Mary Mukiri; Respondent: Justus Mugo; Respondent: National Bank of Kenya; Respondent: Cooperative Bank of Kenya
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E099 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Preservation Orders
- Outcome
- Application for preservation orders dismissed; no orders as to costs at this stage.
- Judges
- AN Makau
- Legal Topics
- Preservation Orders, Union Funds, Interlocutory Injunctions, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Walter Biegon
Applicant
Union of Kenya Civil Servants
Respondent
Tom Odege
Respondent
Mary Mukiri
Respondent
Justus Mugo
Respondent
National Bank of Kenya
Respondent
Cooperative Bank of Kenya
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Preservation Orders
Legal Issues
- 1 Whether the applicant has established a prima facie case for the issuance of preservation orders over the union's bank accounts.
- 2 Whether there is sufficient evidence of fraud or illegal transactions to warrant freezing the accounts.
- 3 Whether the application meets the threshold for interlocutory injunctive relief.
Ratio Decidendi
The court found that the applicant failed to present any documentary evidence of illegal transactions or fraud in the union's bank accounts. Without such evidence, the threshold for granting preservation orders was not met. The court emphasized that preservation orders are extraordinary remedies that require a clear demonstration of risk to the subject matter, which was not established in this case. Consequently, the application for freezing the accounts was declined, and the matter was set for further directions to allow for a full hearing on the substantive issues raised.
Court Disposition
Application for preservation orders dismissed; no orders as to costs at this stage.
Orders
- The application for preservation orders is declined.
- The matter is placed for directions on 28th October 2021 to confirm filing of responses and for further directions as to disposal of the suit.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA
AT NAIROBI
MISCELLANEOUS APPLICATION NO. E099 OF 2021
IN THE MATTER OF AN APPLICATION FOR ORDERS UNDER SECTIONS 1A,
1B &3A OF THE CIVIL PROCEDURE ACT CAP 21 LAWS OF KENYA
AS READ TOGETHER WITH ORDER 51 RULE 1 OF THE
CIVIL PROCEDURE RULES 2010
AND
IN THE MATTER OF PRESERVATION ORDERS FOR THE SUMS OF MONEY IN
ACCOUNT NO. 0102xxxxxxxxxx NATIONAL BANK OF KENYA, HARAMBEE AVENUE
AND ACCOUNT NO. 0112xxxxxxxxxx COOPERATIVE BANK OF KENYA MOI AVENUE
BRANCH IN THE NAME OF UNION OF KENYA CIVIL SERVANTS
BETWEEN
WALTER BIEGON................................................................................APPLICANT
VERSUS
UNION OF KENYA CIVIL SERVANTS.................................1ST RESPONDENT
TOM ODEGE............................................................................2ND RESPONDENT
MARY MUKIRI........................................................................3RD RESPONDENT
JUSTUS MUGO........................................................................4TH RESPONDENT
AND
NATIONAL BANK OF KENYA..................................1ST INTERESTED PARTY
COOPERATIVE BANK OF KENYA.........................2ND INTERESTED PARTY
RULING
1. The motion before me is the one filed by the Applicant on 4th June 2021 seeking the issuance of preservation orders by the Court to restrain the Respondents from transacting in the accounts of the 1st Respondent held at the Interested Parties. The motion is supported by the affidavit of Mr. Walter Biegon the Applicant herein. The Respondents are opposed and filed an affidavit sworn by the 2nd Respondent Mr. Tom Odege who deposes that the entire application is fatally defective, frivolous, vexatious, bad in law, an abuse of the court process. He also asserts that the motion is an afterthought, misconceived, time wasting, unmerited and a conglomeration of lies and blatant concealments of facts. The Respondents assert the Application is a perfect material for dismissal with costs.
2. The parties canvased the motion by way of submissions and the common thread running through both submissions is that the matter is between Union officials. The Applicant asserts that there is fraud and economic crimes ongoing at the 1st Respondent. If the Court has comprehended the matter well, this is a matter that requires full hearing to determine the veracity of the matters raised by the Applicant. From the record before the Court it is clear there are accounts held at the National Bank of Kenya and the Co-Operative Bank of Kenya by the 1st Respondent. No documents were presented to show any illegal transactions and as such the order for preservation is misplaced and without any support. As such the Court declines the invitation to issue any order freezing the accounts of the 1st Respondent. As the matter is involving Union officials the matter will be placed for directions on 28th October 2021 to confirm the filing of responses and for directions as to the disposal of the suit. There shall be no orders granted in respect of the present motion as such there is no order on costs as the eventual determination of the suit will determine where the liability for costs will lie.
It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF SEPTEMBER 2021.
NZIOKI WA MAKAU
JUDGE