Republic v Kenya Meat Commission Exparte Ruth Muthoni Mwangi [2020] KEELRC 1454 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction and limitation
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.
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.
Entitlement to mandamus for payment and reinstatement
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.
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.
Legal principles established
#- 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
#- 1.Dismissal of the application.
- 2.Each party to bear own costs of the application.
- Jurisdiction invoked
- Order 53 rule 3(1) of the Civil Procedure Rules (judicial review jurisdiction of the Employment and Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.