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ELRCDismissedNot stated in judgment (Notice of Motion dated 19th June 2018)· [2018] KEELRC 722 (KLR)

Dave Gitonga Kaura v Tharaka Nithi County Government & another [2018] KEELRC 722 (KLR)

Employment and Labour Relations Court
5 October 2018
NMNzioki wa Makau
1,177 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 employment court refused to force an employer to pay withheld salaries, saying the worker could be compensated with money damages later.

What this practically means

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Executive summary

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The Claimant moved the court by Notice of Motion dated 19th June 2018 seeking payment of salaries withheld from September 2017, filed while his main claim remained pending. The Respondents opposed, arguing the Claimant had effectively been dismissed after a show-cause process in November 2017, that his contract was possibly illegal and unenforceable under the Mapis Investment rule, and that the court should not interfere with managerial prerogative over discipline and promotions under the County Governments Act. The Claimant argued he remained in employment, had neither been suspended nor removed from the payroll, and that an employee is entitled as of right to wages. The court framed the motion as one for injunctive relief and applied the Giella v Cassman Brown three-part test: prima facie case, irreparable harm not compensable by damages, and balance of convenience. It accepted that a dispute exists but held that any loss the Claimant might suffer could be remedied by an award of damages at trial, so the injunction threshold was not met. It also declined to apply the Mapis illegal-contract rule at the interlocutory stage, as the merits - including the contract's legality - had not yet been heard. The court dismissed the motion with no order as to costs, leaving the substantive claim to proceed to full trial.

Key legal issues

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01

Whether the interlocutory injunction threshold was met

Holding

The motion was unfit for grant because damages would be an adequate remedy

Reasoning

The court applied the three-part Giella v Cassman Brown test. Although a dispute existed over the Claimant's dismissal and withheld salary, the Claimant could not show that the harm suffered would not be adequately compensated by an award of damages at trial. The court also noted the merits, including the alleged illegality of the contract under Mapis, remained to be determined at full trial, so no final finding was made at this interlocutory stage.

p. 3
02

Whether the Mapis rule on illegal contracts applied at this stage

Holding

It did not, as the court had not yet determined the legality of the contract

Reasoning

The Respondent argued the contract was unenforceable as illegal under Mapis Investment v Kenya Railways. The court held this was premature: the merits had not been heard, so the court could not determine whether the contract was illegal and thus bring its enforcement within the Mapis rule. The question remained pending before the court for trial.

p. 2

Legal principles established

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  • An applicant for temporary injunction must show a prima facie case with probability of success, irreparable injury not compensable by damages, and if in doubt, the balance of convenience
  • An employee is entitled as of right to earn wages

Court orders

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  1. 1.The Claimant's Notice of Motion dated 19th June 2018 is dismissed
  2. 2.No order as to costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute (not expressly cited in judgment)

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, "Dave Gitonga Kaura v Tharaka Nithi County Government & another [2018] KEELRC 722 (KLR)", Case Analysis (2018). Not stated in judgment (Notice of Motion dated 19th June 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/722/eng@2018-10-05

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