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ELRCDismissedNot stated in the judgment (Notice of Motion dated 19th June 2018)· [2018] KEELRC 697 (KLR)

Purity Njeri Kathenya v Tharaka Nithi County Government & another [2018] KEELRC 697 (KLR)

Employment and Labour Relations Court
5 October 2018
1,222 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to order an employer to resume paying a worker's withheld salary, saying money damages at trial would be enough.

What this practically means

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Executive summary

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The Claimant, an employee of the 1st Respondent, moved the court by notice of motion dated 19th June 2018 seeking orders compelling the Respondents to pay salary and allowances withheld from November 2017 and to continue paying all outstanding salaries and allowances pending the hearing and determination of the suit. She argued that her qualifications were a matter for the 2nd Respondent, that she had neither been suspended nor removed from the payroll, and that withholding salary while she remained in employment was unfair and unlawful, relying on Radido J.'s holding that an employee is entitled as of right to earn wages. The Respondents opposed, invoking managerial prerogative, disciplinary powers under Sections 75 and 86 of the County Governments Act 2012, the rule in Mapis Investment on unenforceability of illegal contracts, and mandatory injunction principles requiring clear and exceptional circumstances. The court held that the Mapis rule was premature since illegality of the contract had not been determined at trial, and that the applicable test was that in Giella v Cassman Brown as stated in East African Industries v Trufoods: prima facie case, irreparable harm not compensable by damages, and balance of convenience. The court found that if the Claimant ultimately succeeded she would be compensated by damages, and that the threshold for injunctive relief was not met. The notice of motion was dismissed with no order as to costs. The substantive claim remains live before the court. Dated and delivered at Meru on 5th October 2018 by Nzioki wa Makau, Judge.

Key legal issues

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01

Whether the Claimant satisfied the Giella v Cassman Brown test for injunctive relief

Holding

The test was not met; the application was dismissed

Reasoning

The court restated the three-part test: assessment of merits showing the claim is not frivolous, demonstration of irreparable harm in context of its nature rather than magnitude, and balance of convenience where in doubt. The court noted that if the Claimant is ultimately entitled to relief, she would be compensated by damages, indicating no irreparable injury. On that basis the interlocutory threshold failed.

p. 3
02

Whether the rule in Mapis Investment on unenforceability of illegal contracts could defeat the interlocutory application

Holding

No - that rule was inapplicable at the interlocutory stage since illegality of the contract is yet to be determined

Reasoning

The Respondents argued the claim fell under the Mapis rule on unenforceability of illegal contracts. The court held this position erroneous because the court had not yet heard the merits and could not determine illegality before trial. The applicability of Mapis was therefore premature and the claim remained live.

p. 2
03

Whether an employee whose salary is withheld pending disciplinary processes is entitled to interlocutory payment

Holding

Not on the material before the court, absent satisfaction of the injunction threshold

Reasoning

The Claimant argued that withholding salary while still in employment was unfair and unlawful, citing Radido J. The Respondents invoked managerial prerogative and disciplinary powers under the County Governments Act. The court resolved the motion purely on the injunction threshold rather than deciding the substantive entitlement, finding damages an adequate remedy if she succeeds at trial.

p. 3

Legal principles established

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  • A court cannot make a determination that a contract is illegal so as to invoke the rule on unenforceability of illegal contracts before hearing and determining the merits
  • The principles for the grant of a temporary injunction are those in Giella v Cassman Brown: prima facie case with probability of success, irreparable injury not adequately compensable by damages, and balance of convenience where the court is in doubt

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 disputes relating to contracts of service (court seized of claim relating to Claimant's contract of service)

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, "Purity Njeri Kathenya v Tharaka Nithi County Government & another [2018] KEELRC 697 (KLR)", Case Analysis (2018). Not stated in the judgment (Notice of Motion dated 19th June 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/697/eng@2018-10-05

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