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ELRCDismissedEldoret ELRC No. 30 of 2019 (Notice of Motion dated 12th July 2023)· [2023] KEELRC 2581 (KLR)

Kalasinga & 3 others v Moi University (Cause 30 of 2019) [2023] KEELRC 2581 (KLR)

Employment and Labour Relations Court
12 October 2023
MOMaureen Onyango
1,478 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court refused to stop Moi University from recovering salary surcharges from three employees, ruling they can be refunded if their appeal succeeds.

What this practically means

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Executive summary

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The Claimants, former or serving employees of Moi University against whom surcharges totalling Kshs 2,174,200 were imposed following a judgment of this court delivered on 15th June 2023 dismissing their claims, moved the court by notice of motion dated 12th July 2023 under section 12 of the Employment and Labour Relations Court Act seeking an injunction restraining the University from enforcing the surcharge and from harassing or victimising them pending the hearing and determination of their intended appeal to the Court of Appeal. They argued that the University had begun enforcing the surcharge through demand letters, that the orders in the judgment were negative so stay of execution was unavailable, and that the appeal would be rendered nugatory. The Respondent, through a replying affidavit of its Senior Legal Officer, Petronila C. Chepkwony, opposed the application, contending the appeal was unlikely to succeed and offering that each Claimant deposit three-quarters of the surcharge, or security of Kshs 1,630,650, in a joint interest-earning account. The application was canvassed by written submissions; no submissions were filed for the Respondent. Framing the sole issue as whether a temporary injunction should issue, the court applied the Giella v Cassman Brown principles as elaborated in Nguruman Limited v Jan Bonde Nielsen. It presumed a prima facie appeal since an appeal had been filed, but found the Claimants had failed to establish irreparable injury not compensable by damages, there being no demonstration that the University could not refund the surcharge should the appeal succeed. The application was dismissed with costs on 12th October 2023.

Key legal issues

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01

Whether the conditions for a temporary injunction under the Giella v Cassman Brown principles were satisfied

Holding

The application failed because the Claimants did not demonstrate irreparable injury that could not be adequately compensated by damages, the second Giella condition

Reasoning

The court presumed a prima facie appeal since an appeal to the Court of Appeal had been filed, but held it could not assess its prospects. It then applied the second Giella condition as elaborated in Nguruman Limited v Jan Bonde Nielsen, requiring the applicant to demonstrate actual, substantial and demonstrable injury beyond speculation. The Claimants did not show that Moi University, their employer, would be unable to refund the surcharge of Kshs 2,174,200 if the appeal succeeded, so damages were an adequate remedy and the injunction could not issue.

p. 4

Legal principles established

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  • Where a party has filed an appeal to the Court of Appeal, the trial court presumes a prima facie appeal but will not determine its probability of success; the applicant must still establish irreparable injury not adequately compensable by damages
  • An interlocutory injunction will not issue where damages are an adequate remedy and the respondent is capable of paying

Court orders

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  1. 1.The application dated 12th July 2023 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Employment and Labour Relations Court Actsection 12

Cases cited (2)

  • Giella v Cassman Brown & Company Limited
    (1973) E A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act, 2011

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, "Kalasinga & 3 others v Moi University (Cause 30 of 2019) [2023] KEELRC 2581 (KLR)", Case Analysis (2023). Eldoret ELRC No. 30 of 2019 (Notice of Motion dated 12th July 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2581/eng@2023-10-12

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