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ELRCDismissed· [2018] KEELRC 2317 (KLR)

Callen Gatune Francis v Tharaka Nithi County Public Service Board & another [2018] KEELRC 2317 (KLR)

Employment and Labour Relations Court
20 February 2018
NMNzioki wa Makau
1,224 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court at Nyeri refused to order an employer to keep paying a dismissed-on-interdiction employee's salary pending trial, because damages could later compensate her.

What this practically means

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Executive summary

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This was a ruling on the Claimant's notice of motion dated 27th November 2017 in an employment cause before the Employment and Labour Relations Court at Nyeri. The Claimant, who had been interdicted from the service of the 1st Respondent on 26th September 2017 following allegations of ghost workers on the payroll and non-disclosure of criminal charges for abuse of office, sought payment of her salary for August and September 2017 and continued payment of full salary from October 2017 pending the hearing and determination of the suit. She argued unfair labour practices under Sections 43 and 45 of the Employment Act and relied on authority that withholding salary causes financial embarrassment not remediable by later payment. The Respondents opposed, asserting the Claimant was a dishonest employee who failed to disclose material particulars, and argued that the order sought was a mandatory injunction disguised as an interlocutory injunction requiring a clear and strong case. The court noted that the relief for August and September salary had already been granted on an interim basis by Ongaya J., leaving alive only the prayer for salary from October 2017 onwards. Following the Giella v Cassman Brown principles and the Court of Appeal's decision in Kamau Muchuha v Ripples Ltd, the court held that the order sought was in substance a mandatory injunction which, if granted, would dispose of the larger corpus of the suit, and that the Claimant's loss was compensable in damages at trial. The application was disallowed with costs to the Respondent.

Key legal issues

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01

Nature of the injunction sought

Holding

The prayer for salary from October 2017 to the conclusion of trial was a mandatory injunction couched as an interlocutory injunction, requiring a clear case and caution

Reasoning

The court agreed with the Court of Appeal's reasoning in Kamau Muchuha v Ripples Ltd that where an interlocutory order, if granted, would amount to granting a major part of the relief claimed in the action, the application must be approached with caution and granted only in a clear case. Granting the order would effectively dispose of the larger corpus of the suit.

p. 3
02

Adequacy of damages

Holding

Any loss the Claimant would suffer was compensable by damages, so the Giella second test failed

Reasoning

Applying the Giella v Cassman Brown principles, the court found the only loss the Claimant would suffer if the relief was declined was the salaries for the period between her interdiction and the conclusion of the case. Since trial was likely within 12 months of accrual, the court could adequately compensate her by an award of damages if she succeeded.

p. 3

Legal principles established

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  • An interlocutory application for a mandatory injunction that would grant a major part of the relief claimed in the action should be approached with caution and granted only in a clear case
  • Where the loss claimed can be adequately compensated by an award of damages, an interlocutory injunction will not be granted

Court orders

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  1. 1.The Claimant's notice of motion dated 27th November 2017 is disallowed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Employment ActSection 43
  • Employment ActSection 45

Cases cited (11)

  • Donald C. Avude v Kenya Forest Service
    [2015] eKLR
  • Nyutu & Others v Gathoni & Others
    [1990] KLR 554
  • Espere Kenya Limited v Sam Mureithi
    [2017] eKLR
  • Giella v Cassman Brown
    [1973] EA 358
  • Kamau Muchuha v Ripples Ltd
    Civil Appl. (Nai) No. 126 of 1992
  • Shepherd Homes Ltd v Sandham
    (1971) Ch. 349
  • National Bank of Kenya v Duncan Owuor Shakali & Another
    CA No. 9 of 1997
  • Eric V. J. Makokha & 4 Others v Lawrence Sagini & 2 Others
    [1994] eKLR
  • Uhuru Highway Development Ltd. v Central Bank & 2 Others
    [1995] eKLR
  • Alfred Nyungu Kimungui v Bomas of Kenya
    [2013] eKLR
  • Professor Gitile Naituli v University Council of Multimedia University College & Another
    Industrial Cause No. 1200 of 2012 (unreported)
Jurisdiction invoked
Not expressly stated; the matter is an interlocutory notice of motion in an employment cause before the Employment and Labour Relations Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Callen Gatune Francis v Tharaka Nithi County Public Service Board & another [2018] KEELRC 2317 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2317/eng@2018-02-20

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