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ELRCAllowedNotice of Motion Application dated 8th March 2022 (Petition not numbered in judgment)· [2022] KEELRC 29 (KLR)

Kenya County Govenment Workers Union v County Government of Wajir & another (Petition 46 of 2022) [2022] KEELRC 29 (KLR)

Employment and Labour Relations Court
28 April 2022
SRStella Rutto
1,542 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered Wajir County to put 20 appointed workers on its payroll and pay their salaries from their appointment dates.

What this practically means

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Executive summary

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The Kenya County Government Workers Union, a trade union suing on behalf of its members, moved the Employment and Labour Relations Court at Nairobi by Notice of Motion dated 8th March 2022, seeking interim orders compelling the Respondents, the County Government of Wajir, to place into the county payroll its members who had undergone a competitive recruitment process and been issued with appointment letters as Town Administrators between April and October 2021, and to commence payment of their salary arrears from the dates of their appointment letters. The application was supported by the affidavit of Ahmed Maalim Abdullahi and skeleton submissions invoking Articles 10, 23(3), 28 and 41 of the Constitution, section 12 of the Employment and Labour Relations Court Act and sections 2 and 18 of the Employment Act. The Respondents were duly served but filed no response, so the application was unopposed and the allegations uncontroverted. The Court examined the uniform appointment letters, accepted by the members, and held that live and valid employment contracts existed. Applying the mandatory injunction tests in Kenya Breweries Ltd & Another v Washington O. Okeya and Nation Media Group & 2 Others v John Harun Mwau, Judge Stella Rutto found that special and exceptional circumstances had been demonstrated and that the failure to absorb the employees and pay them exposed them to potential unfair labour practices under Article 41. On 28th April 2022 the Court allowed the application, ordering the Respondents to place the twenty named members on the payroll and to commence payment of their salary arrears from the time of appointment, with costs in the cause.

Key legal issues

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01

Whether a mandatory injunction could issue at the interlocutory stage

Holding

Yes - the Applicant demonstrated special and exceptional circumstances and an uncontroverted case, satisfying the higher threshold for a mandatory interlocutory injunction.

Reasoning

The Court applied the tests in Kenya Breweries Ltd & Another v Washington O. Okeya and Nation Media Group & 2 Others v John Harun Mwau, which require special circumstances and a higher degree of assurance than for prohibitory injunctions. The Respondents filed no response despite service, leaving the Applicant's allegations uncontroverted. The appointment letters, accepted by the members, proved live employment contracts, and non-placement on payroll and non-payment of salary exposed the members to unfair labour practices contrary to Article 41.

p. 3

Legal principles established

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  • A mandatory interlocutory injunction requires a higher standard than a prohibitory injunction and must be supported by special or exceptional circumstances

Court orders

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  1. 1.An interim order compelling the Respondents to place into its payroll the twenty named members of the Applicant who have not been absorbed into the county's payroll
  2. 2.An order compelling the Respondents to commence payment of salary arrears of the twenty named members from the time they were appointed
  3. 3.Costs in the cause
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act; Articles 10, 23(3), 28 and 41(1) & (2) of the Constitution

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, "Kenya County Govenment Workers Union v County Government of Wajir & another (Petition 46 of 2022) [2022] KEELRC 29 (KLR)", Case Analysis (2022). Notice of Motion Application dated 8th March 2022 (Petition not numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/29/eng@2022-04-28

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