Purity Njeri Kathenya v Tharaka Nithi County Government & another [2018] KEELRC 697 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Claimant satisfied the Giella v Cassman Brown test for injunctive relief
The test was not met; the application was dismissed
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.
Whether the rule in Mapis Investment on unenforceability of illegal contracts could defeat the interlocutory application
No - that rule was inapplicable at the interlocutory stage since illegality of the contract is yet to be determined
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.
Whether an employee whose salary is withheld pending disciplinary processes is entitled to interlocutory payment
Not on the material before the court, absent satisfaction of the injunction threshold
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.
Legal principles established
#- 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
#- 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 disputes relating to contracts of service (court seized of claim relating to Claimant's contract of service)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.