[2021] KEELRC 1385 (KLR)
The court held that the dispute between the applicant and the respondent was fundamentally contractual, arising from the applicant's own request to have his salary paid through IG SACCO to facilitate loan repayment. After defaulting on the loan and the Sacco moving against his guarantors, the applicant sought to...
Source-derived case information.
- Citation
- [2021] KEELRC 1385 (KLR)
- Parties
- Applicant: Dr Abraham Anjestsa Malenya; Respondent: Kibabi University
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Application E007 of 2021
- Procedural Posture
- Judicial Review Application / Ruling on Leave to Institute Judicial Review
- Outcome
- application dismissed with costs
- Legal Topics
- Salary Payment Disputes, Breach of Employment Contract, Judicial Review Thresholds, Loan Repayment Deductions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr Abraham Anjestsa Malenya
Applicant
Kibabi University
Respondent
Procedural Posture
Judicial Review Application / Ruling on Leave to Institute Judicial Review
Legal Issues
- 1 Whether the applicant is entitled to leave to institute judicial review proceedings against the respondent's decision to channel his salary to IG SACCO.
- 2 Whether judicial review is the appropriate remedy for disputes arising from breach of employment contract and salary payment arrangements.
- 3 Whether the applicant acted in bad faith by seeking to reverse a prior commitment regarding salary payment through the Sacco.
Ratio Decidendi
The court held that the dispute between the applicant and the respondent was fundamentally contractual, arising from the applicant's own request to have his salary paid through IG SACCO to facilitate loan repayment. After defaulting on the loan and the Sacco moving against his guarantors, the applicant sought to reverse the arrangement via judicial review, which the court found inappropriate. Judicial review is not the proper avenue for resolving employment contract disputes, and the applicant failed to justify why he bypassed the standard procedure of filing a Statement of Claim. The court further noted evidence of bad faith on the applicant's part, as he attempted to renege on a prior...
Court Disposition
application dismissed with costs
Orders
- Leave to institute judicial review proceedings is declined.
- The Summons is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
46 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
JUDICIAL REVIEW APPLICATION NO. E007 OF 2021
IN THE MATTER OF AN APPLICATION FOR LEAVE TO INSTITUTE JUDICIAL REVIEW ORDERS OF CERTIORARI AND PROHIBITION
AND
IN THE MATTER OF SECTION 17(1)(b) AND SECTION 19(3) OF THE EMPLOYMENT ACT
AND
IN THE MATTER OF FAIR ADMINISTRATIVE ACTIONS ACT
AND
IN THE MATTER OF ORDER 53 OF THE CIVIL PROCEDURE RULES, 2010
AND
IN THE MATTER OF AN APPLICATION
BETWEEN
DR ABRAHAM ANJESTSA MALENYA.................EX-PARTE APPLICANT
AND
KIBABI UNIVERSITY...........................................................RESPONDENT
RULING
1. Dr Abraham Malenya (the ex-parte applicant) filed a Summons with the Court on 7 June 2021 seeking orders:
(i) …
(ii) Pending the hearing and determination of this application and/or main Motion, the Respondent be ordered to release the ex-parteapplicant’s salary to his designated account at Family Bank account number xxxxxxxxxxxxxx Kakamega.
(iii) Leave be granted to the ex-parte applicant to institute judicial review proceedings seeking for an order of certiorari to be directed to the Respondent, by themselves, their servants and/or agents or any other officer acting under their authority to bring to the Court for purpose of being quashed their decision made by them from August 2020 to channel all the ex-parte applicant’s salary after deductions to an unknown account managed and operated by IG SACCO.
(iv) Leave be granted to the ex-parte applicant to institute judicial review proceedings seeking for an order of mandamus directed to the Respondent to compel it to channel the ex-parte applicant’s salary after deductions to his account at Family Bank Kakamega, Account number xxxxxxxxxxxxx or any other designated account by the applicant in accordance with section 17(1)(b) of the Employment Act.
(v) Leave so granted do operate as a stay of any action of the Respondent to the ex-parte applicant’s salary to an unknown account at IG SACCO or anywhere else other than his account at a Family Bank Kakamega account number xxxxxxxxxxxx.
(vi) Costs of this application be provided.
2. The Respondent filed Grounds of Opposition on 15 June 2021.
3. Pursuant to further Court orders, the ex-parte applicant filed his submissions on 24 June 2021 while the Respondent filed a replying affidavit and submissions on 28 June 2021.
4. The Court has considered the Summons, affidavits, grounds of opposition and the submission and come to the view that leave should not be granted for the reasons that follow.
5. One, judicial review orders are discretionary and may not be granted even when merited.
6. The ex-parte applicant has a contract of service with the Respondent. On 15 June 2020, he wrote to the Chief Executive Officer of Invest and Grow Sacco requesting that his salary be paid through the Sacco to facilitate ease of repaying a loan he had taken.
7. On 2 July 2020, the ex-parte applicant notified the Registrar of the Respondent that his salary should be paid through his account with Family Bank Ltd.
8. The dispute between the ex-parte applicant and the Respondent revolves around breach of contract.
9. There are allegations that the ex-parte applicant stopped repaying his loans and the Sacco moved against his guarantors as a result of which an agreement was reached that the salary be channelled through the Sacco.
10. The primary mode of approaching the Court in employment/contractual disputes is not through judicial review but through a Statement of Claim.
11. The ex-parte applicant did not disclose why he opted to take the judicial review route rather than the normal route.
12. Secondly, there is on record affidavit evidence that the ex-parte applicant had taken a loan which he defaulted in repaying forcing the Sacco to deduct the outstanding amounts from the guarantors.
13. When confronted with the default, the ex-parte applicant made a commitment to have the salary paid through the Sacco in order for the Sacco to directly deduct repayments.
14. By now attempting to run from the commitment, the ex-parte applicant appears to exhibit bad faith.
15. The Court therefore declines to grant leave as sought.
16. The Summons is dismissed with costs.
DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 1ST DAY OF JULY 2021.
Radido Stephen, MCIArb
Judge
Appearances
For ex-parte applicant Chimei & Co. Advocates
For Respondent Federation of Kenya Employers
Court Assistant Chrispo Aura