1. Christiaan Friedrich Neser (the applicant) was employed by Globology Ltd (the company) as Chief Executive Officer on or around 17 June 2019.
2. The contractual relationship between the applicant and the Respondents hit turbulence and on 15 April 2024, the company notified the applicant of the termination of his employment.
3. The applicant was aggrieved and on 29 April 2024, he moved the Court against the Respondents alleging unfair termination of employment, discrimination, violation of constitutional rights and breach of contract.
4. On 7 May 2024, the applicant filed a Motion seeking orders:
(i) …
(ii) …
(iii) Pending the hearing and determination of ELRC Cause No. 33 of 2024 this Honourable Court be pleased to give an order restraining the Respondents, their representatives and their agents from dispossessing or in any way interfering with the applicant’s possession and use of Toyota Land Cruiser with registration number KBX 925V and chassis number UZJ100-0161589.
(iv) This Honourable Court be pleased to give an order permanently restraining the Respondents, their representatives and their agents from dispossessing or in any way interfering with the applicant’s possession and use of Toyota Land Cruiser with registration number KBX 925V and chassis number UZJ100-0161589.
(v) This Honourable Court be pleased to give an order directing and compelling the Respondents to transfer to the applicant the ownership of motor vehicle Toyota Land Cruiser with registration number KBX 925V and chassis number UZJ100-0161589.
(vi) The costs of this application.
5. The main grounds advanced in support of the application were that the vehicle was part and parcel of the applicant’s emoluments and that the Respondents had been making deductions from the applicant towards the purchase of the vehicle.
6. The Court declined to grant any ex-parte orders and directed the applicant to serve the Motion.
7. Upon service, the Respondents caused to be filed a replying affidavit on 17 May 2024, sworn by a director, George Opondo Ooko, the 5th Respondent.
8. In the affidavit, it was deponed that the employment contract provided that a vehicle would be given to the applicant to facilitate his contract but only during employment which had been terminated; there was no promise of transfer of ownership of the vehicle to the applicant; the vehicle was co-owned by the company and I & M bank Ltd under a hire purchase agreement; no deductions had been made from the applicant’s salary towards the purchase of the vehicle and that no mutual agreement had been reached with the applicant to sell the vehicle to him.
9. The applicant filed a further affidavit on 23 May 2024 in which he asserted that the company had made an offer to sell the vehicle to him on 30 October 2023, and that deductions were made from his salary towards the settlement of the hire purchase price with the bank.
10. Pursuant to Court directions, the applicant filed his submissions on 14 June 2024, and the Respondents on 26 June 2024.
11. The Court has considered the Motion, affidavits and submissions.
12. At this interlocutory stage of the proceedings, the Court must caution itself not to delve into contested questions of fact.
13. The applicant seeks injunctive orders. The principles and test to be met by a party seeking injunctive orders are well set out in authorities such as Giella v Cassman Brown Ltd (1973) EA 358 and Mrao Ltd v First American Bank of Kenya Ltd & 2 Ors.
14. The applicant should demonstrate the existence of a prima facie case with a probability of success and that if an injunctive order is not granted, there is a likelihood of irreparable injury which cannot be remedied by compensation being occasioned. If in doubt, the Court should consider the balance of convenience.
15. The applicant has not placed before the Court any material which expressly shows an agreement with the company to purchase the vehicle in contention.
16. The applicant also contended that the Respondents were making deductions from his remuneration towards the purchase of the vehicle.
17. However, the applicant did not provide any prima facie evidence of such deductions, either through the payroll or pay slips. Even the consideration for the purchase or sale of the vehicle was not indicated or adverted to in the affidavit to show an agreement of minds on the purchase of the vehicle.
18. Clause 6.4 of the employment contract cited by the applicant as forming the foundation for the ownership or eventual ownership of the vehicle merely provides that the company would facilitate the applicant in his duties by making available a suitable vehicle.
19. On the state of the record, the Court finds that the applicant has not satisfied the test for the grant of the injunctive orders sought.
20. Before concluding, the Court notes that the delivery of this Ruling has been brought forward with notice to the parties.
Orders
21. The Motion filed in Court on 7 May 2024 is dismissed with costs in the cause.
2. The contractual relationship between the applicant and the Respondents hit turbulence and on 15 April 2024, the company notified the applicant of the termination of his employment.
3. The applicant was aggrieved and on 29 April 2024, he moved the Court against the Respondents alleging unfair termination of employment, discrimination, violation of constitutional rights and breach of contract.
4. On 7 May 2024, the applicant filed a Motion seeking orders:
(i) …
(ii) …
(iii) Pending the hearing and determination of ELRC Cause No. 33 of 2024 this Honourable Court be pleased to give an order restraining the Respondents, their representatives and their agents from dispossessing or in any way interfering with the applicant’s possession and use of Toyota Land Cruiser with registration number KBX 925V and chassis number UZJ100-0161589.
(iv) This Honourable Court be pleased to give an order permanently restraining the Respondents, their representatives and their agents from dispossessing or in any way interfering with the applicant’s possession and use of Toyota Land Cruiser with registration number KBX 925V and chassis number UZJ100-0161589.
(v) This Honourable Court be pleased to give an order directing and compelling the Respondents to transfer to the applicant the ownership of motor vehicle Toyota Land Cruiser with registration number KBX 925V and chassis number UZJ100-0161589.
(vi) The costs of this application.
5. The main grounds advanced in support of the application were that the vehicle was part and parcel of the applicant’s emoluments and that the Respondents had been making deductions from the applicant towards the purchase of the vehicle.
6. The Court declined to grant any ex-parte orders and directed the applicant to serve the Motion.
7. Upon service, the Respondents caused to be filed a replying affidavit on 17 May 2024, sworn by a director, George Opondo Ooko, the 5th Respondent.
8. In the affidavit, it was deponed that the employment contract provided that a vehicle would be given to the applicant to facilitate his contract but only during employment which had been terminated; there was no promise of transfer of ownership of the vehicle to the applicant; the vehicle was co-owned by the company and I & M bank Ltd under a hire purchase agreement; no deductions had been made from the applicant’s salary towards the purchase of the vehicle and that no mutual agreement had been reached with the applicant to sell the vehicle to him.
9. The applicant filed a further affidavit on 23 May 2024 in which he asserted that the company had made an offer to sell the vehicle to him on 30 October 2023, and that deductions were made from his salary towards the settlement of the hire purchase price with the bank.
10. Pursuant to Court directions, the applicant filed his submissions on 14 June 2024, and the Respondents on 26 June 2024.
11. The Court has considered the Motion, affidavits and submissions.
12. At this interlocutory stage of the proceedings, the Court must caution itself not to delve into contested questions of fact.
13. The applicant seeks injunctive orders. The principles and test to be met by a party seeking injunctive orders are well set out in authorities such as Giella v Cassman Brown Ltd (1973) EA 358 and Mrao Ltd v First American Bank of Kenya Ltd & 2 Ors.
14. The applicant should demonstrate the existence of a prima facie case with a probability of success and that if an injunctive order is not granted, there is a likelihood of irreparable injury which cannot be remedied by compensation being occasioned. If in doubt, the Court should consider the balance of convenience.
15. The applicant has not placed before the Court any material which expressly shows an agreement with the company to purchase the vehicle in contention.
16. The applicant also contended that the Respondents were making deductions from his remuneration towards the purchase of the vehicle.
17. However, the applicant did not provide any prima facie evidence of such deductions, either through the payroll or pay slips. Even the consideration for the purchase or sale of the vehicle was not indicated or adverted to in the affidavit to show an agreement of minds on the purchase of the vehicle.
18. Clause 6.4 of the employment contract cited by the applicant as forming the foundation for the ownership or eventual ownership of the vehicle merely provides that the company would facilitate the applicant in his duties by making available a suitable vehicle.
19. On the state of the record, the Court finds that the applicant has not satisfied the test for the grant of the injunctive orders sought.
20. Before concluding, the Court notes that the delivery of this Ruling has been brought forward with notice to the parties.
Orders
21. The Motion filed in Court on 7 May 2024 is dismissed with costs in the cause.