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ELRCDismissedCause No E875 of 2024· [2025] KEELRC 952 (KLR)

Ndungu v Kenya Institute Of Management (KIM) (Cause E875 of 2024) [2025] KEELRC 952 (KLR)

Employment and Labour Relations Court
27 March 2025
BMB. O. M. Manani
1,583 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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Kenya's Employment Court ruled that an employee cannot get salary arrears and dues paid before trial if the employer disputes owing them.

What this practically means

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Executive summary

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The Claimant, a former employee of the Respondent whose contract was terminated with effect from 2nd May 2024 on grounds of gross negligence, misconduct and poor performance, filed a statement of claim together with a notice of motion dated 15th October 2024. In the motion she sought orders compelling the Respondent to pay withheld salaries of over sixteen months, to release salary deductions with interest, and to clear her and release dues withheld since 2022. She also alleged unremitted statutory and loan deductions exposing her to penalties and claimed Ksh. 5,454,499.00 in the main suit. The Respondent opposed the application, contending that the reliefs sought at the interim stage were the same contested reliefs sought in the suit; that salary was paid (evidenced by pay slips); that no loan debits were effected; and that while it admitted arrears on statutory deductions, it had entered into an arrangement with the Kenya Revenue Authority to service them. It also alleged the Claimant owed it Ksh. 706,806.00. The court, per B. O. M. Manani, Judge, observed that although the Claimant cited no legal provisions, the motion bore the face of an application for summary judgment seeking liquidated reliefs before trial. Holding that contested claims cannot be determined at the interlocutory stage on evidence not subjected to cross-examination, and that the Respondent's denials raised triable issues, the court distinguished the decision in Mathenge v DLR Group Africa Limited relied on by the Claimant as having been made in a final judgment after evaluation of evidence. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the application, though not anchored on cited legal provisions, could be treated as one for summary judgment

Holding

The court treated the motion as bearing the face of an application for summary judgment because it sought liquidated reliefs before trial

Reasoning

The Claimant did not cite the legal provisions underpinning the application, but the reliefs sought (salary arrears and unremitted deductions) are liquidated claims that form part of the main suit. Seeking such reliefs before trial gives the motion the character of a summary judgment request, which the court assessed against the requirement that such claims be undisputed.

p. 3
02

Whether contested interim reliefs can be granted before trial

Holding

No; where the respondent contests the claims and raises triable issues, the court must await trial

Reasoning

The Respondent denied owing salary arrears (evidenced by pay slips), denied effecting loan debits, and showed an ongoing KRA arrangement for statutory arrears. These denials raised triable issues. The court held it cannot make definitive findings on contested matters at the interlocutory stage, distinguishing the authority relied on by the Claimant as having been made after full evaluation of evidence in a final judgment.

p. 4

Legal principles established

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  • A court cannot determine contested liquidated claims at the interlocutory stage on the basis of evidence not subjected to cross-examination; such claims must go to full trial
  • Where a respondent contests interim reliefs and raises triable issues, summary orders cannot issue

Court orders

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  1. 1.The application dated 15th October 2024 is dismissed
  2. 2.Costs of the application granted to the Respondent

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) RulesRule 28(3)

Cases cited (2)

  • Isaac Musyoki Komoni v Sammy Kaumbulu Mbuvi
    [2022] eKLR
  • Mathenge v DLR Group Africa Limited
    (Cause E942 of 2021) [2024] KEELRC 960 (KLR) (2 May 2024) (Judgment)
Jurisdiction invoked
Original employment and labour relations jurisdiction of the ELRC (application under unspecified provisions; ELRC Procedure Rules referenced)

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, "Ndungu v Kenya Institute Of Management (KIM) (Cause E875 of 2024) [2025] KEELRC 952 (KLR)", Case Analysis (2025). Cause No E875 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/952/eng@2025-03-27

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