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ELRCPartially AllowedNot stated in the judgment as provided· [2023] KEELRC 2590 (KLR)

Wafula v Board of Management, Masimba High School & another (Cause E066 of 2023) [2023] KEELRC 2590 (KLR)

Employment and Labour Relations Court
25 October 2023
RSRadido Stephen
762 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered a school to pay its bursar months of withheld salary and readmit him to work because the school could not prove a disciplinary process.

What this practically means

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Executive summary

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The applicant, employed as Bursar of Masimba High School in 2015, moved the court on 31 August 2023 under a certificate of urgency seeking temporary and mandatory injunctive orders restraining the respondents from withholding his salary, benefits and allowances from February 2023, compelling payment of the same, and restraining them from terminating or interfering with his employment otherwise than in accordance with the law and his terms of service. The applicant asserted that from February 2023 he had not been paid and that the Principal had verbally ordered him to leave and changed the locks to his office despite there being no disciplinary process or termination. The Principal and Secretary of the Board opposed the Motion, asserting the applicant deserted work on 5 April 2023, failed to respond to a show-cause letter, declined to accept his salary, and had kept chequebooks, keys and issued falsified receipts; a further affidavit added allegations of failure to remit statutory deductions. The applicant denied ever being served with a show-cause letter. The court found the show-cause letter was not produced, noted the inconsistency between the desertion claim and the admission that the applicant processed salaries in June 2023, and observed the salary payment arrangement needed interrogation. Finding no evidence of a disciplinary process and no lawful or contractual foundation for withholding the salaries, the court ordered the respondents to pay all accrued salaries from February 2023 to date, to allow the applicant back to work unless and until lawfully suspended, and awarded costs in the cause. Delivered virtually, dated and signed in Kisumu on 25 October 2023 by Radido Stephen, J.

Key legal issues

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01

Prima facie case for interlocutory relief where salary withheld

Holding

At the interlocutory stage the applicant established merit in his contention that there was no lawful or contractual foundation for withholding his salary from February 2023.

Reasoning

The respondents asserted the applicant deserted duty on 5 April 2023 and was issued a show-cause letter, but the show-cause letter was not placed before the court. The respondents also deponed that the applicant processed salaries in June 2023, which the court found inconsistent with the desertion claim. There was no evidence of a pending disciplinary process, and no suggestion in law or contract that salary could be withheld in such circumstances. Payment in cash was also a matter needing interrogation.

p. 2

Legal principles established

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  • A party seeking interlocutory relief must demonstrate a prima facie case
  • There must be a lawful or contractual foundation for withholding an employee's salary, and mere assertions of desertion unsupported by documents (such as a show-cause letter) do not establish it

Court orders

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  1. 1.The respondents to pay the applicant all accrued salaries from February 2023 to date
  2. 2.The respondents to allow the applicant back to work unless and until lawfully suspended
  3. 3.Costs in the cause
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (application invoking the Constitution and the Employment Act); brought under a certificate of urgency

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, "Wafula v Board of Management, Masimba High School & another (Cause E066 of 2023) [2023] KEELRC 2590 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2590/eng@2023-10-25

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