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ELRCDismissedNot stated in judgment· [2021] KEELRC 680 (KLR)

Burt Aggrey Odhiambo v University of Nairobi Enterprises and Service Board [2021] KEELRC 680 (KLR)

Employment and Labour Relations Court
28 September 2021
NMNzioki Wa Makau
2,344 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to order terminal dues early because the application would have decided the whole case — such requests must wait for a full hearing.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent as an Assistant Maintenance Officer from 26th April 2012 on renewable term contracts, moved the court by Notice of Motion dated 22nd June 2021 seeking orders that the Respondent compute and remit his terminal dues pending hearing and determination of the suit. His contract lapsed on 4th June 2021 by effluxion of time, and by letter dated 27th April 2021 the Respondent declined to renew it, citing a decision to outsource facilities management. The Claimant contended that he had duly cleared with all relevant departments under paragraph 9.2(e) of the Respondent's Human Resource Management Manual using Clearance Form UNES/FM/A009, and that the Managing Director unlawfully suspended processing of his dues in retaliation for his whistleblowing on irregularities, including the pilferage of Kshs. 4,500,000/-. He relied on Section 40 of the Employment Act and the case of Ignas Karingo Mghona & 4 Others v Star of Hope International Foundation. The Respondent opposed, contending that the Claimant had not completed the exit clearance procedure under its Human Resource Policy and Procedures Manual of July 2018, that his clearance was irregular and forged, that he had failed to account for Kshs. 4,500,000/- in consultancy monies, and that dues were payable only after clearance, an exit interview and handing over. It cited Daniel Mwanzau Nzioka v Brinks Security Services, Amos Kitavi Kivite v Kenya Revenue Authority and Lawrence O Moseti & 22 Others v County Government of Nakuru. The court held that the application could not be granted on an interim basis as it dealt exhaustively with the dispute in the main claim, and dismissed the motion, directing the matter for case directions. No costs order was made.

Key legal issues

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Whether terminal dues could be compelled on an interlocutory application where clearance is contested

Holding

The application was dismissed because it went to the substance of the main claim and could not be determined interlocutorily

Reasoning

The court found that ordering computation and remittal of terminal dues pending the suit would require resolving the contested question of whether the Claimant had duly cleared with the Respondent, including the disputed clearance, the alleged liability of Kshs. 4,500,000/- and the exit interview. Those matters go to the heart of the main claim and cannot be exhausted on a motion. The court therefore declined to grant interim relief and directed that the main claim proceed to hearing.

p. 3

Legal principles established

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  • An interlocutory application that requires exhaustive determination of the whole dispute cannot be granted on an interim basis

Court orders

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  1. 1.The Notice of Motion dated 22nd June 2021 is dismissed
  2. 2.The matter to be set down for directions as to hearing of the main claim shortly after delivery of the ruling

Authorities

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Legislation

  • Employment ActSection 40
  • Employment Act, 2007Section 47(5)
  • Official Secrets Actnot specified
  • Retirement Benefits Actnot specified
  • Pensions Actnot specified

Cases cited (4)

  • Ignas Karingo Mghona & 4 Others v Star of Hope International Foundation
    [2016] eKLR
  • Daniel Mwanzau Nzioka v Brinks Security Services limited
    [2020] eKLR
  • Amos Kitavi Kivite v Kenya Revenue Authority
    [2020] eKLR
  • Lawrence O Moseti & 22 Others v County Government of Nakuru
    [2018] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction (Employment Act, 2007; Employment and Labour Relations Court Act) - not expressly invoked in the judgment

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, "Burt Aggrey Odhiambo v University of Nairobi Enterprises and Service Board [2021] KEELRC 680 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/680/eng@2021-09-28

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