Fredrick Otieno Oswe v Spectre International Co. Limited & Equity Bank (K) Limited [2018] KEELRC 130 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU

CAUSE NO. 421 OF 2017

(Before Hon.  Justice Mathews N. Nduma)

FREDRICK OTIENO OSWE..................................................CLAIMANT

VERSUS

SPECTRE INTERNATIONAL CO. LIMITED.........1ST RESPONDENT

EQUITY BANK (K) LIMITED...................................2ND RESPONDENT

R U L I N G

1. The Applicant has a loan with the 2nd Respondent, Equity Bank Limited, which loan has fallen into arrears and due to alleged default by the 2nd Respondent, the employer of the Applicant.

2. The 2nd Respondent has deducted monthly loan repayment instalments from the Applicant’s salary but has failed and/or neglected to remit the same to the 2nd Respondent.

3. The Applicant’s loan agreement is with the 2nd Respondent and the 1st Respondent is a third party to the said Loan Agreement.

4. The Applicant clearly has a cause of action against the 1st Respondent for failure to remit monies deducted from his salary to the 2nd Respondent to applicant’s loss and detriment. It is not alleged that the 1st Respondent was a guarantor to the loan. The loan was however given on the strength of the monthly salary paid to the Claimant by the 1st Respondent.

5. At this stage of the case, the question is whether the Applicant has made out a prima facie case as against the 1st and 2nd Respondents.

6. Clearly the Claimant has a prima facie case against the 1st Respondent but not so as against the 2nd Respondent.

7. The injunction sought in prayers (4) and (5) pending the hearing of the suit are as against both Respondents in prayer 4 and against 2nd Respondent in prayer 5.

8. The Applicant has failed to show a prima facie case with probability of success as against the 2nd Respondent.  Accordingly, the application fails as against the 2nd Respondent.

9. However, a mandatory interim injunction is issued as against the 1st Respondent not to further deduct any salary from the Applicant and to render to the court, Claimant and 2nd Respondent within 30 days, an account of all the monies deducted from the salary of the Applicant and remitted or not remitted to the 2nd Respondent.

Ruling Dated, Signed and delivered this 6th day of December, 2018

Mathews N. Nduma

Judge

Appearances

Mr. Maube & Co. advocates for the Applicant

Olel, Onyango, Ingutiah & Co. adv. for the 2nd Respondent

Chrispo  – Court Clerk