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ELRCPartially AllowedCause No 858 of 2019· [2020] KEELRC 269 (KLR)

Charles Maringo v National Council of Churches of Kenya & another [2020] KEELRC 269 (KLR)

Employment and Labour Relations Court
21 October 2020
HWHellen Wasilwa
3,515 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered an employer to pay a sick doctor five months' unpaid salary even though he had already been dismissed.

What this practically means

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Executive summary

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Dr. Charles Maringo, employed by the National Council of Churches of Kenya and Jumuia Hospitals Limited as Medical Administrator/Resident Physician on a two-year contract effective 1st February 2019 at a gross monthly salary of Kshs. 492,140/=, filed a Notice of Motion dated 17th December 2019 seeking mandatory and prohibitory injunctions: payment of outstanding salaries from May to December 2019, an order for regular salary payment, and restraint of disciplinary proceedings and termination. He had undergone two head surgeries in 2019 and produced sick-offs for three months from April 2019 and a further three months from July 2019. The respondents, through a Replying Affidavit sworn by their Legal Officer Annette Matolo, contended the claimant failed to provide sick-off documentation and discharge summaries, ignored show cause letters and disciplinary hearing invitations, and was summarily dismissed by notice dated 13th December 2019 effective 1st October 2019. They argued the injunctive prayers were overtaken by events and offered to pay dues subject to conditions. The claimant relied on Giella v Cassman Brown and contended the disciplinary process violated his rights. The court found the prayers restraining disciplinary action and termination overtaken by events given the dismissal effective 1st October 2019. However, holding that the respondents failed to explain the withholding of salary despite knowledge of the claimant's illness, the court awarded his outstanding salaries for May to September 2019, totalling Kshs. 2,460,700/= less statutory deductions. Costs of the application were ordered to be in the claim. The main suit proceeds to hearing.

Key legal issues

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01

Whether the claimant was entitled to unpaid salaries pending hearing of the suit

Holding

The court found the claimant entitled to five months' outstanding salary (May to September 2019) less statutory deductions, as the respondents had withheld pay despite knowing he was unwell

Reasoning

The court observed the claimant was employed at Kshs. 492,140/= per month, fell ill and was hospitalised with head surgery, and was given sick-offs. The respondents terminated his services from October 2019 but failed to explain why they did not pay his salary from May 2019 to September 2019 despite knowing he was unwell. The court computed five months' salary at 5 x 492,140 = 2,460,700/= less statutory deductions.

p. 4
02

Whether injunctive relief restraining disciplinary proceedings and termination could still issue

Holding

The prayers were refused as overtaken by events, the claimant having been summarily dismissed effective 1st October 2019

Reasoning

The claimant sought orders preventing disciplinary action and unlawful termination. The respondents averred the claimant had already been dismissed with effect from 1st October 2019. The court agreed that these prayers were overtaken by events and could not be granted at the interlocutory stage.

p. 4

Legal principles established

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  • An employer who is aware that an employee is unwell and undergoing treatment cannot withhold the employee's salary for the period before termination

Court orders

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  1. 1.The respondents to pay the claimant his outstanding salaries for May 2019 to September 2019 (5 months) at Kshs. 492,140/= per month, totalling Kshs. 2,460,700/= less statutory deductions
  2. 2.Costs of the application to be in the claim

Authorities

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Legislation

  • Employment and Labour Relations Court ActSections 3 and 12
  • ELRC Procedure RulesRule 17
  • Constitution of KenyaArticles 159(2), 41 and 47(1)
  • Employment ActSections 45(2), 44(4)(a), 30 and 30(2)

Cases cited (9)

  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
  • Giella vs Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Daniel Moroko Barito v Anthony Nge'erechi & another
    [2017] eKLR
  • Panari Enterprises Limited v Lijoodi & 2 others
    [2014] eKLR
  • Barclays Bank Of Kenya Ltd v Banking, Insurance & Finance Union (Kenya)
    2019
  • Lucy Wangui Gachara v Minudi Okemba Lore
    [2015] eKLR
  • Banking, Insurance & Finance Union (Kenya) v Barclays Bank of Kenya Ltd
    [2014] eKLR
  • SACWU v Dyasi
    [2001] 7 BLLR 731 (LAC)
  • Dorothy Njoki Ndung'u v Machakos University College & Another
    [2017] eKLR
Jurisdiction invoked
Sections 3 and 12 of the Employment and Labour Relations Court Act and Rule 17 of the ELRC Procedure Rules, 2016

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, "Charles Maringo v National Council of Churches of Kenya & another [2020] KEELRC 269 (KLR)", Case Analysis (2020). Cause No 858 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/269/eng@2020-10-21

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