[2018] KEELRC 130 (KLR)
The court found that the Applicant had established a prima facie case against the 1st Respondent, his employer, for failing to remit deducted loan repayments to the 2nd Respondent, Equity Bank. The 1st Respondent was under a duty to remit the deducted amounts as per the employment and loan arrangements. However, the...
Source-derived case information.
- Citation
- [2018] KEELRC 130 (KLR)
- Parties
- Applicant: Fredrick Otieno Oswe; Respondent: Spectre International Co. Limited; Respondent: Equity Bank (K) Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 421 of 2017
- Procedural Posture
- Employment Cause / Ruling on Interlocutory Injunction
- Outcome
- Application partly allowed.
- Judges
- MN Nduma
- Legal Topics
- Salary Deductions, Loan Repayment, Employer Liability, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Otieno Oswe
Applicant
Spectre International Co. Limited
Respondent
Equity Bank (K) Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the 1st Respondent unlawfully failed to remit deducted loan repayments from the Applicant's salary to the 2nd Respondent.
- 2 Whether the Applicant has established a prima facie case for an injunction against the 1st and 2nd Respondents.
- 3 Whether a mandatory interim injunction should issue to prevent further deductions and require an account of remittances.
Ratio Decidendi
The court found that the Applicant had established a prima facie case against the 1st Respondent, his employer, for failing to remit deducted loan repayments to the 2nd Respondent, Equity Bank. The 1st Respondent was under a duty to remit the deducted amounts as per the employment and loan arrangements. However, the Applicant failed to establish a prima facie case against the 2nd Respondent, as the 2nd Respondent was not responsible for the employer's failure to remit. Consequently, the court granted a mandatory interim injunction against the 1st Respondent to stop further deductions and to provide an account of all deductions and remittances within 30 days, but dismissed the application...
Court Disposition
Application partly allowed.
Orders
- A mandatory interim injunction is issued against the 1st Respondent not to further deduct any salary from the Applicant.
- The 1st Respondent is ordered to render to the court, Claimant, and 2nd Respondent within 30 days, an account of all monies deducted from the salary of the Applicant and remitted or not remitted to the 2nd Respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
CAUSE NO. 421 OF 2017
(Before Hon. Justice Mathews N. Nduma)
FREDRICK OTIENO OSWE..................................................CLAIMANT
VERSUS
SPECTRE INTERNATIONAL CO. LIMITED.........1ST RESPONDENT
EQUITY BANK (K) LIMITED...................................2ND RESPONDENT
R U L I N G
1. The Applicant has a loan with the 2nd Respondent, Equity Bank Limited, which loan has fallen into arrears and due to alleged default by the 2nd Respondent, the employer of the Applicant.
2. The 2nd Respondent has deducted monthly loan repayment instalments from the Applicant’s salary but has failed and/or neglected to remit the same to the 2nd Respondent.
3. The Applicant’s loan agreement is with the 2nd Respondent and the 1st Respondent is a third party to the said Loan Agreement.
4. The Applicant clearly has a cause of action against the 1st Respondent for failure to remit monies deducted from his salary to the 2nd Respondent to applicant’s loss and detriment. It is not alleged that the 1st Respondent was a guarantor to the loan. The loan was however given on the strength of the monthly salary paid to the Claimant by the 1st Respondent.
5. At this stage of the case, the question is whether the Applicant has made out a prima facie case as against the 1st and 2nd Respondents.
6. Clearly the Claimant has a prima facie case against the 1st Respondent but not so as against the 2nd Respondent.
7. The injunction sought in prayers (4) and (5) pending the hearing of the suit are as against both Respondents in prayer 4 and against 2nd Respondent in prayer 5.
8. The Applicant has failed to show a prima facie case with probability of success as against the 2nd Respondent. Accordingly, the application fails as against the 2nd Respondent.
9. However, a mandatory interim injunction is issued as against the 1st Respondent not to further deduct any salary from the Applicant and to render to the court, Claimant and 2nd Respondent within 30 days, an account of all the monies deducted from the salary of the Applicant and remitted or not remitted to the 2nd Respondent.
Ruling Dated, Signed and delivered this 6th day of December, 2018
Mathews N. Nduma
Judge
Appearances
Mr. Maube & Co. advocates for the Applicant
Olel, Onyango, Ingutiah & Co. adv. for the 2nd Respondent
Chrispo – Court Clerk