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ELRCDismissedNotice of Motion dated 28th September 2016· [2017] KEELRC 1861 (KLR)

Juliana Ndanu Muendo & 6 others v Beverly Schools of Kenya Limited [2017] KEELRC 1861 (KLR)

Employment and Labour Relations Court
20 January 2017
LNLinnet Ndolo
400 words in judgment
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The bottom line

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A Kenyan employment court refused to order an employer to pay salary arrears before full trial, because the employer disputed the claim and evidence was needed.

What this practically means

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Executive summary

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The Claimants, former teachers of the Respondent, moved the Court by Notice of Motion dated 28th September 2016 seeking orders directing the Respondent to pay their salaries for June, July and August 2016 and to release deductions made on account of the Octagon Pension Scheme and E-Kenya Cooperative shares. The application, supported by an affidavit of the 3rd Claimant, Thomas Oundo Pamba, was premised on the assertion that the Claimants faithfully served and were confirmed, and that the Respondent, having failed to pay teachers for three months, terminated their employment on 18th August 2016. The Respondent, through its Executive Director Alice Agam Mudiri, denied diligence and contended the Claimants had been paid all dues. Framing the issue as whether the Claimants had made out a case for interlocutory orders, the Court noted the orders sought were in the nature of a mandatory injunction, available only in exceptional circumstances, citing Peter Wanyama Ojiambo v Technical University of Kenya. Since salary arrears and unremitted deductions were contested, the parties would need to call evidence at trial, and the orders could not issue at the interlocutory stage. The application was dismissed with costs in the cause. Judgment delivered at Nairobi on 20th January 2017 by Linnet Ndolo J.

Key legal issues

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01

Whether exceptional circumstances existed to grant a mandatory injunction at the interlocutory stage

Holding

No; the claims for salary arrears and unremitted deductions are contested and require evidence at trial, so the interlocutory mandatory injunction could not issue

Reasoning

The court applied the principle from Peter Wanyama Ojiambo v Technical University of Kenya that interlocutory mandatory injunctions are granted only in exceptional circumstances. Because the Respondent denied the arrears and unpaid deductions, the facts were disputed and required trial evidence; consequently the threshold of exceptional circumstances was not met and the application failed.

p. 2

Legal principles established

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  • Payment of salary arrears at the interlocutory stage is a mandatory injunction available only in exceptional circumstances

Court orders

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  1. 1.The Claimants' application dated 28th September 2016 is dismissed
  2. 2.Costs of the application to be in the cause

Authorities

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Cases cited (1)

  • Peter Wanyama Ojiambo v Technical University of Kenya & 2 Others
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction (not expressly cited in extract)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Juliana Ndanu Muendo & 6 others v Beverly Schools of Kenya Limited [2017] KEELRC 1861 (KLR)", Case Analysis (2017). Notice of Motion dated 28th September 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1861/eng@2017-01-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.