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ELRCDismissedNot stated in the judgment extract (Notice of Motion dated 18th June, 2020)· [2020] KEELRC 460 (KLR)

Dious Emanuel & another v Ison Technologies Kenya Limited & another [2020] KEELRC 460 (KLR)

Employment and Labour Relations Court
17 September 2020
HWHellen Wasilwa
1,358 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 declined to order an employer to pay disputed salaries before the main case was fully heard, because the interim request mirrored the main claim.

What this practically means

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Executive summary

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The Claimants, Dious Emmanuel and Manoj Skaria, former employees of the Respondent engaged as General Manager - Sales and Manager - Technical Sales respectively, brought a Notice of Motion dated 18th June 2020 seeking interlocutory orders compelling the Respondents to release their unpaid salaries and allowances and to issue their Certificates of Service pending hearing of the main suit. The Claimants claimed arrears of USD 74,172 and USD 7,189.09 respectively after part payments, invoking Section 25 of the Employment Act, 2007 on payment of salary, and Section 51 on certificates of service, and relied on authorities where courts ordered payment of wrongfully withheld salaries. The Respondents filed grounds of opposition and submissions, arguing that the amounts were disputed and formed the subject of the main claim and counterclaim; that granting the orders would amount to granting final relief or summary judgment, citing Court of Appeal and other authorities on summary judgment and judgment on admission. In a brief ruling delivered on 17th September 2020, Wasilwa J noted that the prayers sought in the application were similar to those in the main claim and held that such orders could only be resolved after conclusive hearing of the main claim or upon the parties' agreement. The application was therefore declined, with costs in the cause. No orders compelling payment of salary arrears or issuance of certificates of service were made at the interlocutory stage.

Key legal issues

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01

Whether withheld salary arrears and certificates of service can be ordered on an interlocutory application before the main claim is heard

Holding

The court declined to grant the orders, holding that the prayers sought in the application mirror those in the main claim and can only be resolved after conclusive hearing of the main claim or by agreement of the parties

Reasoning

The court observed that the prayers in the Notice of Motion were substantially the same as those in the main claim. Granting them would effectively determine the disputed salary arrears and entitlements before trial. The Respondent had contested the amounts, and the court held the issues could only be resolved at full trial or by consent of the parties.

p. 3

Legal principles established

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  • Where interlocutory prayers sought substantially reproduce the prayers in the main claim, they cannot be granted before conclusive hearing of the main claim or agreement of the parties

Court orders

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  1. 1.The orders sought in the application cannot be granted at the current time (application effectively declined)
  2. 2.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(1) and (2)(a)
  • Civil Procedure Rules, 2010Order 40 Rules 1, 2, 4 & 5
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure ActSection 3A
  • Judicature ActNot specified
  • Employment Act, 2007Section 25
  • Employment Act, 2007Section 51

Cases cited (4)

  • Ezekiel Nyangoya Okemwa Vs Kenya Marine & Fisheries Research Institute
    (2016) eKLR
  • Samuel Kipchumba Kaptoge Vs Moi Teaching & Referral Hospital
    (2015) eKLR
  • Isaac Awuondo Vs Surgipharm Limited & Another
    (2011) eKLR
  • Top In Town Dry Cleaner Services Limited Vs Aegis Kenya Limited T/A Leopard Beach Resort & Spa Hotel
    (2020)
Jurisdiction invoked
Article 40(1) and (2)(a) of the Constitution of Kenya, 2010; Order 40 Rules 1, 2, 4 & 5 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Section 3A of the Civil Procedure Act; Judicature 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, "Dious Emanuel & another v Ison Technologies Kenya Limited & another [2020] KEELRC 460 (KLR)", Case Analysis (2020). Not stated in the judgment extract (Notice of Motion dated 18th June, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/460/eng@2020-09-17

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