Henry Kakai & 10 others v Debendra Kamat T/A Swadish Foods [2012] KEELRC 277 (KLR)
The bottom line
#Kenya's employment court refused to force a Nairobi employer to deposit Kshs 4.15 million as security, ruling that fear alone cannot replace evidence.
What this practically means
#Executive summary
#Key legal issues
#Security for a claim/attachment before judgment pending trial
The application was refused because the claimants failed to adduce evidence of intent by the respondent to defeat a decree; apprehension alone is insufficient.
The court applied principles analogous to Order 39 of the Civil Procedure Act: the applicant must show the respondent is disposing of property, removing it from the jurisdiction, or about to abscond with intent to defeat execution. The respondent denied any intention to abscond, is a Kenyan citizen, appeared in court and initiated closure notices. There is no rule permitting attachment before judgment to protect a creditor before judgment, to prevent an anfractuous decree. Vague allegations are insufficient and the draft claim had not been proved.
Compliance with section 40 of the Employment Act on redundancy
The respondent had not demonstrated compliance with section 40(1)(a) and (b); the initial redundancy notice of 1st November 2012 was not copied to the Labour Officer, and the corrected notice appeared to be an afterthought.
The court found section 40 conditions mandatory. The Labour Officer plays an indispensable role in redundancy, assisting with application of Wage Guidelines on terminal benefits. The respondent initially failed to inform the Labour Officer; only after revoking the first notice did it issue a new one dated 1st December 2012 copied to the Labour Officer. No evidence or submission demonstrated compliance with section 40(1)(a) and (b). This non-compliance justified expediting the hearing but not the security deposit.
Legal principles established
#- The burden lies on the party seeking security or attachment before judgment to show that the respondent is disposing of property, removing it from the jurisdiction, or about to abscond with the object of defeating a decree; vague allegations are insufficient.
- Section 40 of the Employment Act lays down mandatory conditions precedent to termination on account of redundancy, including involvement of the Labour Officer.
- A court should not itself be used as a tool to incur unnecessary expenses where satisfied such expense is unnecessary.
Court orders
#- 1.The application for a security deposit of Kshs.4,151,674.80 is not granted
- 2.The urgency of the claim is confirmed and the claimants granted an early hearing date upon filing and serving their draft Claim and paying court fees
- 3.Costs in the cause
- Jurisdiction invoked
- Industrial Court of Kenya jurisdiction over employment and labour relations disputes; application under Certificate of Urgency
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Henry Kakai & 10 others v Debendra Kamat T/A Swadish Foods [2012] KEELRC 277 (KLR)", Case Analysis (2012). Not stated in the judgment (application dated 5th December 2012 under Certificate of Urgency). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/277/eng@2012-12-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.