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ELRCDismissedNot stated in the judgment as provided· [2018] KEELRC 689 (KLR)

Dennis Muthomi Kinyua v Tharaka Nithi County Government & another [2018] KEELRC 689 (KLR)

Employment and Labour Relations Court
5 October 2018
1,187 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant/Applicant moved the Employment and Labour Relations Court at Meru by a Notice of Motion dated 19th June 2018 seeking orders compelling the Respondents to pay all salaries and allowances withheld from September 2017 pending determination of the suit. The Claimant argued that the 1st Respondent had no mandate to question his qualifications, that he was competitively recruited, never suspended nor removed from the payroll, and that withholding his salary while still in employment was unfair and unlawful, relying on Radido J.'s holding that an employee is entitled as of right to wages. The Respondents opposed the motion, contending that the Claimant had not controverted their averments, that the court does not interfere with managerial prerogative, that Sections 75 and 86 of the County Governments Act 2012 empowered review of promotions and delegation of disciplinary functions, and that the contract was potentially illegal per Mapis Investment. The Respondents also relied on the Giella v Cassman Brown injunction principles and authorities on mandatory injunctions. The court held that the Mapis illegal-contract rule could not apply before the merits established illegality, but that the Claimant had to surmount the Giella threshold. Since the Claimant was ostensibly dismissed after a show cause in November 2017, damages would adequately compensate him if successful at trial. The court found the threshold for injunctive relief unmet, dismissed the motion with no order as to costs.

Key legal issues

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01

Whether the interlocutory relief sought met the Giella v Cassman Brown threshold

Holding

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

Reasoning

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.

p. 3
02

Whether the illegal-contract rule in Mapis Investment applied at the interlocutory stage

Holding

No; illegality of the contract has not been determined on the merits, so the rule in Mapis was inapplicable at this stage

Reasoning

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.

p. 2
03

Whether the 1st Respondent had mandate to question the Claimant's qualifications and initiate disciplinary process

Holding

Not determined; the court decided only the interlocutory application and left the merits pending

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Claimant's notice of motion application dated 19th June 2018 is dismissed
  2. 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

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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, "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.