[2017] KEELRC 1861 (KLR)
The court found that the issues of salary arrears and unremitted deductions were contested and required the parties to present evidence at a full hearing. Since the facts were not clear and indisputable, and the relief sought was in the nature of a mandatory injunction, the court held that the threshold for granting...
Source-derived case information.
- Citation
- [2017] KEELRC 1861 (KLR)
- Parties
- Applicant: Juliana Ndanu Muendo; Applicant: Jacob Wamalwa Werunga; Applicant: Thomas Oundo Pamba; Applicant: Elizabeth Ndinda Muthoka; Applicant: Geoffrey Wanga Kachisa; Applicant: Evans Otieno; Applicant: Vincent Birundu Omurwa; Respondent: Beverly Schools of Kenya Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1858, 1859, 1860, 1861, 1862, 1863 & 1864 of 2016
- Procedural Posture
- Employment Cause / Interlocutory Application for Mandatory Injunction
- Outcome
- application dismissed
- Judges
- L Ndolo
- Legal Topics
- Salary Arrears, Mandatory Injunctions, Unremitted Deductions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Juliana Ndanu Muendo
Applicant
Jacob Wamalwa Werunga
Applicant
Thomas Oundo Pamba
Applicant
Elizabeth Ndinda Muthoka
Applicant
Geoffrey Wanga Kachisa
Applicant
Evans Otieno
Applicant
Vincent Birundu Omurwa
Applicant
Beverly Schools of Kenya Limited
Respondent
Procedural Posture
Employment Cause / Interlocutory Application for Mandatory Injunction
Legal Issues
- 1 Whether the Claimants have established a case for grant of interlocutory mandatory injunction for payment of salary arrears.
- 2 Whether the Respondent should be compelled at the interlocutory stage to remit deducted pension and cooperative shares.
Ratio Decidendi
The court found that the issues of salary arrears and unremitted deductions were contested and required the parties to present evidence at a full hearing. Since the facts were not clear and indisputable, and the relief sought was in the nature of a mandatory injunction, the court held that the threshold for granting such orders at the interlocutory stage had not been met. The application for interlocutory mandatory orders was therefore dismissed, with costs to be determined in the cause.
Court Disposition
application dismissed
Orders
- The Claimants' application for interlocutory mandatory orders is dismissed.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
44 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO 1858 OF 2016
CONSOLIDATED WITH
CAUSE NO 1859 OF 2016
AND
CAUSE NO 1860 OF 2016
AND
CAUSE NO 1861 OF 2016
AND
CAUSE NO 1862 OF 2016
AND
CAUSE NO 1863 OF 2016
AND
CAUSE NO 1864 OF 2016
JULIANA NDANU MUENDO.......................................................1ST CLAIMANT
JACOB WAMALWA WERUNGA...............................................2ND CLAIMANT
THOMAS OUNDO PAMBA..........................................................3RD CLAIMANT
ELIZABETH NDINDA MUTHOKA................................................4TH CLAIMANT
GEOFFREY WANGA KACHISA....................................................5TH CLAIMANT
EVANS OTIENO...........................................................................6TH CLAIMANT
VINCENT BIRUNDU OMURWA..................................................7TH CLAIMANT
VS
BEVERLY SCHOOLS OF KENYA LIMITED.................................RESPONDENT
RULING
1. The Claimants’ application brought by Notice of Motion dated 28th September 2016 and filed in Court on 29th September 2016 seeks an order directing the Respondent to pay the Claimants their salaries for the months of June, July and August 2016.
2. The Claimants further seek an order directing the Respondent to release money deducted from them on account of Octagon Pension Scheme and E-Kenya Cooperative shares.
3. The application which is supported by an affidavit sworn by the 3rd Claimant, Thomas Oundo Pamba on 28th September 2016 is based on the following grounds:
a. That the Claimants were employed by the Respondent as teachers;
b. That the Claimants faithfully carried out their duties and were duly confirmed in their positions;
c. That on 18th August 2016, the Respondent who had for the previous three
3. months not paid all its teachers, terminated the Claimants’ employment.
4. The Respondent’s response is contained in a replying affidavit sworn by its Executive Director, Alice Agam Mudiri. She denies that the Claimants had performed their duties diligently and adds that the Claimants had been paid all their dues.
5. The issue for determination in this application is whether the Claimant has made out a case for grant of the interlocutory orders sought. The orders sought are in the nature of a mandatory injunction and the question is therefore whether there exists exceptional circumstances to warrant grant of these orders at the interlocutory stage. The Court was referred to the decision by Abuodha J in Peter Wanyama Ojiambo v Technical University of Kenya & 2 Others [2016] eKLRwhere the learned Judge held that payment of salary arrears is in the nature of an interlocutory mandatory injunction which is only available in exceptional circumstances. This is the law as I understand it.
6. From the pleadings filed in Court, the issues of salary arrears and unremitted deductions are contested. The effect is that the parties will need to call evidence in support of their respective cases. For this reason, the orders sought cannot be granted at the interlocutory stage.
7. The Claimants’ application therefore fails and is dismissed. The costs of the application will be in the cause.
8. Orders accordingly.
DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 20THDAY OF JANUARY 2017
LINNET NDOLO
JUDGE
Appearance:
Miss Muhanda for the Claimants
Mr. Farrah for the Respondent