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ELRCDismissedJudicial Review application (notice of motion dated 14.10.2019, filed 15.10.2019)· [2020] KEELRC 1454 (KLR)

Republic v Kenya Meat Commission Exparte Ruth Muthoni Mwangi [2020] KEELRC 1454 (KLR)

Employment and Labour Relations Court
6 March 2020
1,732 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed an employee's attempt to force her employer to pay salary arrears because she never first made a formal demand.

What this practically means

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Executive summary

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The applicant, employed by the Kenya Meat Commission as an Accounts Assistant from 1 November 2007, was interdicted on half salary by letter dated 26 June 2015 following criminal charges under the Anti-Corruption and Economic Crimes Act, 2003 in Republic v Ruth Muthoni Mwangi & 5 Others. She was discharged on 9 April 2018 under section 89(5) of the Criminal Procedure Code because the charges had been recommended by the EACC before it was properly constituted. She twice requested resumption of duty; the respondent sought EACC advice, and the EACC replied on 24 July 2018 that the file was under review for fresh charging. The respondent continued paying half salary. She filed a notice of motion under Order 53 rule 3(1) of the Civil Procedure Rules seeking mandamus orders compelling the Managing Director to pay basic salary arrears, remunerative allowance, gratuity and leave allowance, and to reinstate her or, alternatively, pay Kshs.5,190,995.00 for the remainder of her tenure. The respondent opposed, contending the claim was time barred under section 90 of the Employment Act and that mandamus was unwarranted. The Court found the claims were continuing injuries not barred by limitation, but held that no demand and refusal on the quantified sums had been established, the payment duty had not accrued under the subsisting interdiction, and reinstatement was misconceived since the applicant remained in employment. The application was dismissed with each party bearing own costs.

Key legal issues

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01

Jurisdiction and limitation

Holding

The Court has jurisdiction because the claims are continuing injuries that have not ceased, so the application is not time barred under section 90 of the Employment Act.

Reasoning

The respondent argued the cause of action arose in 2012/2015 and the three-year limitation in section 90 of the Employment Act, 2007 had lapsed. The applicant invoked the continuing-injury doctrine, relying on Henry Kipchumba Tarus v Postal Corporation of Kenya quoting George Hiram Ndirangu v Equity Bank Limited. The Court accepted that withholding of half salary, allowances and gratuity under a subsisting interdiction constitutes continuing injury, still active at the time of suit, and therefore the claim was not time barred.

p. 2
02

Entitlement to mandamus for payment and reinstatement

Holding

The mandamus prayers failed: there was no demand and refusal on the quantified sums, the payment duty had not accrued under the subsisting interdiction, and reinstatement was misconceived as the applicant was still in employment.

Reasoning

The Court held that mandamus requires a bearer of duty who has refused to perform after demand. After the applicant's discharge in the criminal case, the legitimate step was to demand lifting of the interdiction or conclusion of the disciplinary case, but none of the prayers sought that. Following Reverend Daniel Muiruri Ndungu v Attorney General (upholding Municipal Council of Kisumu v Madowo), where no decision has been made on entitlement under the employment contract, mandamus directing payment is inappropriate.

p. 3

Legal principles established

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  • Continuing injuries under section 90 of the Employment Act include violations of rights under an employment contract such as salary underpayment or failure to pay accrued dues, and limitation runs from cessation of the continuing injury.
  • Mandamus issues only where the respondent bears a duty to perform, has been demanded to perform, and has refused, neglected or declined to perform; where no decision has been made on entitlement, mandamus directing payment is inappropriate.

Court orders

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  1. 1.Dismissal of the application.
  2. 2.Each party to bear own costs of the application.

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 rule 3(1)
  • Anti-Corruption and Economic Crimes Act2003, section 62
  • Criminal Procedure Codesection 89(5)
  • Employment Act2007, section 90

Cases cited (5)

  • Henry Kipchumba Tarus Versus Postal Corporation of Kenya
    [2019] eKLR
  • George Hiram Ndirangu versus Equity Bank Limited
    [2015] eKLR
  • Reverend Daniel Muiruri Ndungu –Versus- Attorney General & Another
    [2013] eKLR
  • Municipal Council of Kisumu –Versus- Madowo
    [1986-1989] EA 373
  • Republic –Versus- Ruth Muthoni Mwangi & 5 Others (CM ACC No.9 of 2015)
Jurisdiction invoked
Order 53 rule 3(1) of the Civil Procedure Rules (judicial review jurisdiction of 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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Cite this brief

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Cite this brief

Caselaw, "Republic v Kenya Meat Commission Exparte Ruth Muthoni Mwangi [2020] KEELRC 1454 (KLR)", Case Analysis (2020). Judicial Review application (notice of motion dated 14.10.2019, filed 15.10.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1454/eng@2020-03-06

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