Joel Nduruhu Kinuthia v Barefoot Power Africa Limited [2019] KEELRC 1152 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA

AT NAIROBI

CAUSE NO. 1187 OF 2018

JOEL NDURUHU KINUTHIA.................................CLAIMANT

- VERSUS -

BAREFOOT POWER AFRICA LIMITED........RESPONDENT

(Before Hon. Justice Byram Ongaya on Friday 12th July, 2019)

RULING

The application was filed for the claimant on 13. 07. 2018 through Kaplan & Stratton Advocates. The application was under section 12(3) of the Employment and Labour Relations Court Act, Rule 17 of the Employment and Labour relations (Procedure) Rules, and Order 39 rule 5 of the Civil Procedure Rules. The prayers are for orders:

a. That pending the hearing and determination of the suit, an order of injunction be issued to restrain the respondent, its agents, servants or employees from transferring any monies in the account held at the Kenyatta Avenue Branch of CFC Stanbic Bank Limited Dollar account number xxxxxxxxxxxxxx, Kenya Shilling s account No. xxxxxxxxxxxxxx and Euro account number xxxxxxxxxxxxxx all in the name of the respondent to the extent of the claim herein being Kshs.1, 489, 930. 80 and costs of these proceedings estimated at Kshs. 200, 000 totaling Kshs. 1, 689, 930. 80.

b. That the directors of the respondent be ordered to show cause why they should not furnish security in the sum of Kshs. 1, 689, 930. 80 within 7 days being the amount claimed by the claimant in the memorandum of claim filed herein plus the estimated costs.

c. That in default of showing cause by the directors of the respondent, an order of attachment be issued attaching the monies in the accounts held at the Kenyatta Avenue Branch of CFC Stanbic Bank Limited Dollar account number xxxxxxxxxxxxxx, Kenya Shillings account No. xxxxxxxxxxxxxx and Euro account number xxxxxxxxxxxxxx all in the name of the respondent to the extent of the claim herein being Kshs.1, 489, 930. 80 and costs of these proceedings estimated at Kshs. 200, 000 totaling Kshs. 1, 689, 930. 80.

d. The Court be pleased to make any other order as it may deem just.

e. That the costs of the application be provided for.

The application is based on the following grounds:

a. The respondent has no known physical address and is in the process of restructuring its operations in Kenya owing to cash flow problems.

b. If the application is not granted the applicant will suffer irreparable loss.

The application is based on the attached supporting affidavit of the claimant. The claimant filed a further affidavit on 06. 05. 2019.

The respondent appointed Ogera & Mugo Advocates to act in the matter. The respondent filed a replying affidavit sworn by respondent’s counsel Alice Wairimu Mugo on 11. 10. 2018 and the supplementary affidavit by Josphine Wambui Gachiri, the respondent’s Finance Officer. The respondent opposed the application upon the following grounds:

a. The claimant resigned from the respondent’s employment around May 2017 but he failed to do normal clearance applicable to all staff leaving employment.

b. The claimant owes the respondent liabilities in form of money not accounted for and property.

c. It is true that the respondent had cash floor issues due to lack of directors being in place.

d. The respondent has offices at Jadala Place along Ngong Road in Nairobi.

e. The claimant has met respondent’s director one Jackson Machihi and visited the respondent’s offices.

f. The claimant has not accounted to the respondent a sum of Euro 825, 000. 00.

g. The respondent is ready to honour any decree passed in the suit.

The Court has considered the material on record as filed for the parties as well as the applicable law. Order 39 rule 5(1) of the Civil Procedure Rules provides, “Where at any stage of a suit the court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him—

(a) is about to dispose of the whole or any part of his property; or

(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court, the court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.”

In the present case the applicant has established and the respondent has admitted that the respondent has had cash flow problems. The Court has considered the material before the Court and no known assets of the respondent out of which the decree as may issue herein may get satisfied. The Court therefore returns that the applicant has by affidavits on record established that the respondent is about to dispose of the whole or substantial part of its money as held at the accounts and which may delay execution of the decree as may issue in the present case.

The Court has considered the respondent’s submissions that the claimant owes the respondent substantial amounts of money but there was no counterclaim on record in that regard and in any event, the respondent has not filed a memorandum of response to the memorandum of claim to anchor and guide the Court in that regard.

In the circumstances the Court returns that the application filed for the applicant is hereby determined with orders:

a. The directors of the respondent are hereby ordered to show-cause, on a date convenient to the parties and to be fixed accordingly, why they should not furnish security in the sum of Kshs. 1, 689, 930. 80 within 7 days being the amount claimed by the claimant in the memorandum of claim filed herein plus the estimated costs.

b. In default of (a) above and pending the hearing and determination of the suit, an order of attachment is hereby issued attaching the monies in the accounts held at the Kenyatta Avenue Branch of CFC Stanbic Bank Limited Dollar account number xxxxxxxxxxxxxx, Kenya Shillings account No. xxxxxxxxxxxxxx, and Euro account number xxxxxxxxxxxxxx all in the name of the respondent to the extent of the claim herein being Kshs.1, 489, 930. 80 and the costs of the proceedings estimated at Kshs. 200, 000 thus totaling Kshs. 1, 689, 930. 80.

c. Order (b) above is subject to the respondent providing security for the sum of Kshs. 1, 689, 930. 80 and in which event the respondent may move the court for an order that the attachment to be withdrawn when the respondent so furnishes the security as required.

d. For avoidance of doubt, pending satisfaction or perfection of order (a) above, the interim orders earlier made will remain in force.

e. The costs of the application shall be in the cause.

Signed, datedanddeliveredin court atNairobithisFriday 12th July, 2019.

BYRAM ONGAYA

JUDGE