[2018] KEELRC 1867 (KLR)
The court found that the applicant failed to demonstrate the clarity of facts and special circumstances required for the grant of a mandatory injunction at the interlocutory stage. The facts were not indisputable, and the respondent had raised a plausible defence. The court held that the balance of convenience...
Source-derived case information.
- Citation
- [2018] KEELRC 1867 (KLR)
- Parties
- Applicant: Gideon Kosgei Korir; Respondent: Kenya National Farmers Federation
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1286 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Mandatory Injunction
- Outcome
- Application for mandatory injunction dismissed; suit to proceed to hearing on merits.
- Judges
- MN Nduma, DO Ogal
- Legal Topics
- Mandatory Injunction, Salary Arrears, Interlocutory Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Gideon Kosgei Korir
Applicant
Kenya National Farmers Federation
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Mandatory Injunction
Legal Issues
- 1 Whether the applicant has satisfied the prerequisites for the grant of a mandatory injunction at the interlocutory stage.
- 2 Whether the facts of the case are sufficiently clear and undisputed to warrant a mandatory injunction compelling payment of salary arrears.
Ratio Decidendi
The court found that the applicant failed to demonstrate the clarity of facts and special circumstances required for the grant of a mandatory injunction at the interlocutory stage. The facts were not indisputable, and the respondent had raised a plausible defence. The court held that the balance of convenience favored allowing the suit to proceed to a full hearing on its merits rather than granting summary relief through a mandatory injunction.
Court Disposition
Application for mandatory injunction dismissed; suit to proceed to hearing on merits.
Orders
- The application for a mandatory injunction is dismissed.
- The Principal Judge to give directions on the hearing and disposal of the main suit.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 1286 OF 2017
(Before Hon. Justice Mathews N. Nduma)
GIDEON KOSGEI KORIR ................................................ CLAIMANT
VERSUS
KENYA NATIONAL FARMERS FEDERATION........ RESPONDENT
R U L I N G
1. By a Notice of Motion Application dated 17th July, 2017 and filed on even date the Claimant/Applicant seeks issuance of a mandatory order of injunction compelling the Respondent to pay the Claimant outstanding salary arears in the sum of Kshs.1,755,000 or such sum that its Respondent does not dispute.
2. The application is opposed vide a replying affidavit filed on 24th October, 2017 in which the Respondent admits that the Claimant/Applicant is the employee but denies that it owes the applicant arrear salary for over 20 months as alleged or at all.
3. The Respondent states that it has not received from the applicant any demand or complaint whether verbal or written concerning delay or unpaid salary. Indeed no such letter of demand is attached to the application.
4. A mandatory injunction is akin to a Malera injunction at common law and it is granted to conserve the status quo in a very clear case, for the reason that it is summary in nature and determines the cause of action at an interlocutory stage.
5. In NIC Bank Limited vs General Motors East Africa Limited & Another [2014] eKLR,the court cited the case ofLocabail International Finance Limited vs Agro-Export & Another [1986] 1ALL ER 901where it was held as follows:-
“A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could easily be remedied or where the defendant had attempted to steal a match on the plaintiff. Moreover, before granting a mandatory injunction the court had to feel a high sense of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.”
6. The present case does not present such definite clarity on facts as to give the court the comfort that the facts are indisputable and no possible defence would be available to the suit were the matter to proceed to the hearing on merit.
7. Accordingly, the applicant has failed to satisfy the preriquities for granting a mandatory injunction and the balance of convenience dictates that the suit proceed to hearing on merit.
8. The Principal Judge to give directions on the hearing and disposal of the main suit accordingly. Costs in the cause.
Dated and Signed in Kisumu this 2nd day of May, 2018
Mathews N. Nduma
Judge
Delivered and signed in Nairobi this 30th day of May, 2018
Maureen Onyango
Judge
Appearances
Mr. Okoth & Co. Advocates for Claimant/Applicant
Mr. Ayieko for Respondent
Anne Njung’e – Court Clerk