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ELRCDismissedNot stated in the judgment· [2021] KEELRC 1196 (KLR)

Jackson M Italakua & another v Kenya Farmers Association Limited [2021] KEELRC 1196 (KLR)

Employment and Labour Relations Court
22 July 2021
HWHellen Wasilwa
1,873 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Employment Court refused to order early payment of withheld salaries, saying employees must wait for their full case to be heard.

What this practically means

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Executive summary

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The applicants/claimants, formerly employed by the respondent as marketing manager and human resource manager from 15th October 2008, moved the court by a notice of motion dated 26th April 2021 under Articles 20, 22, 23, 41(1), 47 and 50 of the Constitution and Rule 17 of the ELRC Procedure Rules, seeking an order compelling the respondent to pay their outstanding salaries and accrued benefits without tagging the ongoing suit. They asserted their employment had been terminated on 17th March 2020 while their suit for underpayment of salaries, filed on 8th July 2019, was pending, and that withholding of salaries violated their right to dignity. The respondent opposed the application through grounds of opposition and submissions, arguing that the claimants had exited employment and were being paid terminal dues in installments (with only one remaining, delayed by Covid-19), that the application had no foundation in the pleadings, that the supporting affidavits were improperly commissioned by the claimants' own advocate contrary to the Oaths and Statutory Declarations Act, and that the prayers amounted to a mandatory interlocutory injunction requiring special circumstances. After considering written submissions, the court held that the orders sought could only be granted upon hearing the entire suit and found it impracticable to grant them. The application was dismissed, parties directed to set the main claim down for hearing, with costs in the cause.

Key legal issues

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01

Whether interlocutory orders for payment of withheld salaries could be granted

Holding

Application dismissed; the orders sought could only be granted after hearing the entire suit

Reasoning

The court considered the rival averments and submissions and held that the prayers sought were effectively mandatory interlocutory relief, which cannot issue without special circumstances and a higher degree of assurance. Since the main claim on underpayment and terminal dues remained pending for hearing, it was impracticable to grant the orders sought at the interlocutory stage.

p. 3
02

Whether affidavits commissioned by the claimants' advocate should be struck out

Holding

No striking out ordered; the application was dismissed on its merits

Reasoning

The respondent argued, citing authority, that the commissioner of the affidavits was the same advocate who drew the application contrary to the Oaths and Statutory Declarations Act, warranting striking out. The court did not adopt this reasoning; it disposed of the application on the basis that the orders sought required a full hearing of the suit.

p. 3

Legal principles established

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  • An interlocutory mandatory injunction requires special circumstances and a higher standard of assurance than a prohibitory injunction

Court orders

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  1. 1.Application dismissed
  2. 2.Parties directed to proceed to set the main claim for hearing
  3. 3.Costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticles 20, 22, 23, 28, 31, 41(1), 47, 50
  • Employment and Labour Relations Court (Procedure) RulesRule 17
  • Employment ActSections 45, 46
  • Oaths and Statutory Declarations Act (Cap 15)Section 4

Cases cited (9)

  • Republic -V- Kenya National Examination Council and another Ex-parte Audrey Mbugua Ithibu
    [2014] eKLR
  • Jonathan Sprangler –v- Center of African family studies
    [2017] eKLR
  • Lee Njiru –v- John K. Lokorio and another
    [2019] eKLR
  • William Ochanda Onguru –v Housing Finance Co Ltd and Another
    [2005] eKLR
  • Kihara vs Barclays Bank
    [2001] 2 EA 420
  • Robai Kadili Agufa and another –v- Kenya Power and Lighting Co. Ltd
    [2015] eKLR
  • Kenya Breweries Ltd & Another vs Washington O. Okeyo
    [2002] eKLR
  • Locabail International Finance Ltd vs Agroexport and others
    (1986) 1 ALL ER 901
  • Nation Media Group & 2 others vs John Harun Mwau
    [2014] eKLR
Jurisdiction invoked
Articles 20, 22, 23, 41(1), 47 and 50 of the Constitution of Kenya and Rule 17 of the Employment and Labour Relations Court (Procedure) Rules

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, "Jackson M Italakua & another v Kenya Farmers Association Limited [2021] KEELRC 1196 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1196/eng@2021-07-22

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