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ELRCDismissedApplication dated 9th November, 2021· [2022] KEELRC 81 (KLR)

Kangethe v Monarch Insurance Company Limited (Cause E959 of 2021) [2022] KEELRC 81 (KLR)

Employment and Labour Relations Court
27 May 2022
2,065 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to pay a departing employee's dues early but ordered his employer to issue a certificate of service despite a disputed Kshs 597,000 claim.

What this practically means

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Executive summary

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The Claimant/Applicant moved the Employment and Labour Relations Court at Nairobi by an application dated 9th November 2021 seeking, pending determination, orders compelling the Respondent to effect his clearance, pay terminal dues unconditionally, issue a certificate of service, pay accrued house allowance, and expunge from his record any document alleging he owed Kshs 597,000. The Applicant, a former employee, resigned alleging he was set up to take ownership of unaccounted funds and denied clearance. The Respondent opposed, asserting his salary was consolidated and inclusive of 15% house allowance, that he received Kshs 905,000 in per diems and entertainment allowances of which Kshs 597,000 remained unaccounted for, justifying offset against terminal dues of Kshs 202,769.54. The court identified the sole issue as whether the application was merited, characterising the orders sought as mandatory injunctions at the interlocutory stage. Applying Locabail International Finance Ltd vs Agro Export, as restated by the Court of Appeal in Kenya Breweries vs Okeya and Nation Media Group vs Mwau, the court held such injunctions require clear cases and special circumstances. Finding the disputes hotly contested and requiring viva voce evidence and cross-examination at a full trial, and noting the orders sought were final in nature, the court declined to grant them. However, it held the Applicant entitled to a certificate of service under section 51(2) of the Employment Act, since that certificate records employment particulars and has nothing to do with an employee's liability to the employer. The application was disallowed with costs in the cause.

Key legal issues

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01

Whether mandatory injunction orders (clearance, terminal dues, house allowance, expungement) could issue at interlocutory stage

Holding

No; the Application was not merited save for entitlement to a certificate of service

Reasoning

The court applied the Locabail principles, restated in Kenya Breweries and Nation Media Group, that mandatory injunctions at the interlocutory stage require clear cases and special circumstances. Here the disputes over house allowance and the Kshs 597,000 were hotly contested on documentary evidence, requiring viva voce evidence and cross-examination at full trial. The orders sought were final in nature and granting them could prejudice the Respondent.

p. 4
02

Whether the Applicant was entitled to a certificate of service notwithstanding the disputed debt

Holding

Yes; entitlement to a certificate of service is independent of any alleged liability

Reasoning

Under section 51(2) of the Employment Act, a certificate of service records the employer's and employee's names, dates of commencement and cessation of employment and nature/place of employment. It was undisputed the Applicant worked for the Respondent for the specified period, and these particulars have nothing to do with liability to the employer, so the certificate had to issue.

p. 4

Legal principles established

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  • A mandatory injunction should not be granted at the interlocutory stage absent special circumstances and in clear cases; the court must feel a high sense of assurance that at trial the injunction would appear to have been rightly granted.
  • A certificate of service under section 51(2) of the Employment Act concerns particulars of employment and is unaffected by an employee's alleged liability to the employer.

Court orders

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  1. 1.Application dated 9th November, 2021 disallowed
  2. 2.Respondent to issue the Applicant with a certificate of service under section 51(2) of the Employment Act
  3. 3.Costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Employment ActSections 46(h), 51(2), 87
  • Employment and Labour Relations ActSections 3, 12, 20
  • Employment and Labour Relations Court (Procedure) Rules 2016Rules 14 and 17
  • Civil Procedure RulesOrder 39 Rule 1
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (7)

  • Elizabeth Washeke and 62 others vs Airtel Networks (K) Ltd & another
    (2013) eKLR
  • Samuel Gacheha Chege vs Kenya Women Microfinance Bank
    (2021) eKLR
  • Giella vs Cassman Brown
    (1973) EA
  • Muchanga Investments Limited vs Safaris Unlimited (Africa) Ltd & 2 others
    (2009) eKLR
  • Locabail International Finance Ltd vs Agro Export and Another
    [1986] ALL E.R. 901
  • Kenya Breweries Ltd & Another vs Washington O. Okeya
    [2002] eKLR
  • Nation Media Group & 2 Others vs John Harun Mwau
    [2014] eKLR
Jurisdiction invoked
Article 159(2)(d) of the Constitution; Sections 46(h) and 87 of the Employment Act; Sections 3, 12 and 20 of the Employment and Labour Relations Act; Rules 14 and 17 of the ELRC (Procedure) Rules 2016

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, "Kangethe v Monarch Insurance Company Limited (Cause E959 of 2021) [2022] KEELRC 81 (KLR)", Case Analysis (2022). Application dated 9th November, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/81/eng@2022-05-27

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