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ELRCDismissedNot stated in judgment· [2018] KEELRC 1094 (KLR)

Hezron Mwambia Karong’a v Tharaka Nithi County Government & another [2018] KEELRC 1094 (KLR)

Employment and Labour Relations Court
25 September 2018
NMNzioki wa Makau
961 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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Kenya's Employment Court refused to order a county government to pay withheld salaries before fully hearing the case.

What this practically means

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Executive summary

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The Claimant moved the court by Notice of Motion dated 8th December 2017 seeking payment of salaries and allowances withheld from August 2017 to November 2017 pending the hearing and determination of his employment suit against the Respondents, a county government and its officers. The Respondents opposed, asserting that his employment terminated on 8th September 2017, that he was not entitled to payment beyond the termination date, and that his contract was illegal because the county secretary was not permitted under the County Government Act 2012 to appoint persons to office of the 1st Respondent, invoking the rule in Mapis Investment (K) Ltd v Kenya Railways Corporation on unenforceability of illegal contracts. They relied on Giella v Cassman Brown, Kamau Muchuha v Ripples Ltd and other authorities on mandatory injunctions, arguing clear and exceptional circumstances were required. The Claimant relied on Simon Waringa Namakhabwa v Mr. Ajanta, contending an employee is entitled as of right to earn wages even if suspended. The court agreed the orders sought were in the nature of a mandatory injunction and draconian. It held the Respondents' illegality argument premature, since the court had not heard the merits to determine whether the contract was illegal. The threshold for a mandatory injunction not being met, the court declined to order payment of withheld salaries interlocutorily, noting any relief the Claimant is entitled to could be granted at judgment. The motion was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether an interlocutory mandatory injunction to pay withheld salaries could issue

Holding

Dismissed - the mandatory injunction threshold was not met at the interlocutory stage

Reasoning

The court characterised the motion as seeking a mandatory injunction, which is draconian and far-reaching. Following Giella v Cassman Brown and Kamau Muchuha v Ripples Ltd, the Claimant had not established the clear and exceptional circumstances required. Since the merits were pending, any entitlement to withheld salaries could be granted at judgment.

p. 2
02

Whether the contract was illegal and unenforceable

Holding

Premature - illegality cannot be determined before the merits are heard

Reasoning

The Respondents argued the contract was illegally entered into by the county secretary contrary to the County Government Act 2012, invoking the rule in Mapis Investment v Kenya Railways. The court held this position erroneous at the interlocutory stage because illegality is a matter for determination at the hearing of the main suit.

p. 2

Legal principles established

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  • A court cannot determine the unenforceability of an illegal contract before hearing the merits
  • Withheld salaries can be awarded at judgment rather than by way of interlocutory mandatory injunction where the threshold is unmet

Court orders

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  1. 1.The Notice of Motion dated 8th December 2017 is dismissed
  2. 2.Each party to bear their own costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over disputes relating to contracts of service (Employment Act / ELRC Act)

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, "Hezron Mwambia Karong’a v Tharaka Nithi County Government & another [2018] KEELRC 1094 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1094/eng@2018-09-25

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