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ELRCDismissedNotice of Motion dated 23rd April 2018 (ELRC Claim)· [2018] KEELRC 1054 (KLR)

Fridah Kagendo Mbaka & 4 Others v Tharaka Nithi County Government & another [2018] KEELRC 1054 (KLR)

Employment and Labour Relations Court
28 September 2018
NMNzioki wa Makau
932 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to force an employer to pay withheld salaries before trial, saying workers must wait for a full hearing and final judgment.

What this practically means

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Executive summary

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The Claimants filed a Notice of Motion dated 23rd April 2018 seeking interim orders that the 1st Respondent pay salaries and allowances withheld since June 2017 and continue paying each Claimant full salary pending the hearing of the main claim. The Claimants, who had gone unpaid for ten months while still working, argued the 1st Respondent had no power to determine their qualifications, that being a function of the 2nd Respondent, and that withholding their only source of income occasioned hardship. The Respondents opposed the motions through grounds of opposition and submissions, contending that the suit sought to interfere with managerial prerogatives over internal disciplinary processes, and relying on authorities including Standard Resource Group Ltd, Alfred Nyungu Kimungui v Bomas of Kenya and Rebecca Anne Maina. They argued the relief sought was a mandatory injunction requiring clear and exceptional circumstances (Kamau Muchuha v Ripples Ltd; Shepherd Homes Ltd v Sandham), and that the claim failed on the illegal-contract rule in Mapis Investment (K) Ltd v Kenya Railways Corporation. The court declined to apply the Mapis rule at the interlocutory stage, holding that illegality of the contracts was a matter for trial. It found the relief sought was in substance a mandatory injunction whose threshold under Giella v Cassman Brown and Kamau Muchuha v Ripples Ltd was not met, and that damages under Section 49 of the Employment Act, together with withheld salaries, could be awarded at judgment. The court dismissed the application and ordered each party to bear their own costs.

Key legal issues

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01

Whether the illegal-contract rule in Mapis Investment (K) Ltd v Kenya Railways Corporation applied

Holding

It did not apply at the interlocutory stage; illegality is a matter for trial

Reasoning

The court held the Mapis case was not on all fours with the present matter. Whether the Claimants' contracts are illegal or unenforceable is a factual and legal determination reserved for full hearing, so the doctrine could not defeat an interim application.

p. 2
02

Whether the interim relief sought amounted to a mandatory injunction and whether it met the threshold

Holding

It was in essence a mandatory injunction and the threshold was not met; damages would be an adequate remedy

Reasoning

Ordering payment of withheld salaries at the interlocutory stage would be a mandatory injunction with far-reaching ramifications. The Giella principles and the exceptional-circumstances test in Kamau Muchuha v Ripples Ltd were not satisfied, and damages under Section 49 of the Employment Act would adequately compensate the Claimants if they succeeded at trial.

p. 2

Legal principles established

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  • Withheld salaries and damages for breach of contract are amenable to grant at judgment, not on interlocutory motion
  • An interlocutory application is not the forum to determine illegality of a contract before trial

Court orders

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  1. 1.The Claimants' application dated 23rd April 2018 seeking injunctive reliefs is dismissed
  2. 2.Each party to bear their own costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act (not expressly stated in the excerpt)

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, "Fridah Kagendo Mbaka & 4 Others v Tharaka Nithi County Government & another [2018] KEELRC 1054 (KLR)", Case Analysis (2018). Notice of Motion dated 23rd April 2018 (ELRC Claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1054/eng@2018-09-28

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