Dennis Muthomi Kinyua v Tharaka Nithi County Government & another [2018] KEELRC 689 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the interlocutory relief sought met the Giella v Cassman Brown threshold
The application was dismissed because the threshold for injunctive relief was not met; damages would be an adequate remedy if the Claimant succeeds at trial
The court restated the three-part Giella test: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience where in doubt. Applying this, the court found that since the Claimant was ostensibly dismissed after a show cause in November 2017, any entitlement to relief could be satisfied by an award of damages if successful at trial. Hence no irreparable harm and no interlocutory payment of withheld salaries.
Whether the illegal-contract rule in Mapis Investment applied at the interlocutory stage
No; illegality of the contract has not been determined on the merits, so the rule in Mapis was inapplicable at this stage
The Respondents cited Mapis Investment (K) Ltd v Kenya Railways Corporation on the unenforceability of illegal contracts. The court held this position erroneous because the merits had not been heard and no determination had been made that the Claimant's contract was illegal; the rule could only apply after such a finding at trial.
Whether the 1st Respondent had mandate to question the Claimant's qualifications and initiate disciplinary process
Not determined; the court decided only the interlocutory application and left the merits pending
The Claimant argued that questioning his qualifications was the preserve of the 2nd Respondent and that withholding salary of an employee not suspended or removed from the payroll was unlawful. The Respondents relied on Sections 75 and 86 of the County Governments Act 2012 on review of promotions and delegation of disciplinary functions. The court did not resolve these contested issues, confining itself to the injunction threshold.
Legal principles established
#- An employee is entitled as of right to earn wages, and failure to pay salary is a breach of contract (cited authority of Radido J.)
- The court will not apply the rule on unenforceability of illegal contracts until the merits establish that the contract is illegal
Court orders
#- 1.The Claimant's notice of motion application dated 19th June 2018 is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes; specific constitutional/statutory provision not stated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dennis Muthomi Kinyua v Tharaka Nithi County Government & another [2018] KEELRC 689 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/689/eng@2018-10-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.