[2024] KEELRC 1452 (KLR)
The court held that the orders sought by the Claimant—payment of salary arrears and release, transfer, or refund relating to the disputed motor vehicle—constitute a major part of the substantive dispute and cannot be granted summarily at the interlocutory stage. The Employment Act does not empower the court to grant...
Source-derived case information.
- Citation
- [2024] KEELRC 1452 (KLR)
- Parties
- Applicant: Nancy Wambui Muthoga; Respondent: Devkan Enterprises
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause E935 of 2023
- Procedural Posture
- Interlocutory Application / Ruling on Interlocutory Applications for Mandatory Injunctions
- Outcome
- applications declined
- Judges
- J Rika
- Legal Topics
- Salary Arrears, Mandatory Injunction, Employment Termination, Purchase of Motor Vehicle, Summary Determination, Fair Hearing Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nancy Wambui Muthoga
Applicant
Devkan Enterprises
Respondent
Procedural Posture
Interlocutory Application / Ruling on Interlocutory Applications for Mandatory Injunctions
Legal Issues
- 1 Whether the court can grant a mandatory injunction for payment of salary arrears at the interlocutory stage.
- 2 Whether the court can order release, transfer, or refund relating to a disputed motor vehicle at the interlocutory stage.
- 3 Whether granting the orders sought would amount to granting a major part of the substantive claim before a full hearing.
Ratio Decidendi
The court held that the orders sought by the Claimant—payment of salary arrears and release, transfer, or refund relating to the disputed motor vehicle—constitute a major part of the substantive dispute and cannot be granted summarily at the interlocutory stage. The Employment Act does not empower the court to grant such relief without a full hearing. Established appellate authority dictates that mandatory injunctions at the interlocutory stage are only appropriate in the clearest and strongest of cases, which threshold was not met here. The right of both parties to a fair hearing, including the opportunity to call and cross-examine witnesses, must be preserved. Accordingly, the Claimant...
Court Disposition
applications declined
Orders
- The applications filed by the Claimant, dated 16th November 2023 and 21st November 2023, are declined.
- Costs in the cause.
Full Case Text
Judgment text and source record
30 paragraphs
Muthoga v Devkan Enterprises (Cause E935 of 2023) [2024] KEELRC 1452 (KLR) (14 June 2024) (Ruling)
Neutral citation: [2024] KEELRC 1452 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause E935 of 2023
J Rika, J
June 14, 2024
Between
Nancy Wambui Muthoga
Claimant
and
Devkan Enterprises
Respondent
Ruling
1. The Claimant filed two applications, the first dated 16th November 2023, the second, 21st November 2023.
2. The first seeks an order of mandatory injunction, compelling the Respondent to pay the Claimant arrears of salary, from October 2022, to 22nd September 2023.
3. The second seeks an order of mandatory injunction, directing the Respondent to release and transfer to the Claimant, motor vehicle registration number xxxx, a Nissan Note. She also seeks in the alternative to release and transfer, refund of Kshs. 465,000, which she states, was deducted by the Respondent from her salary, towards her purchase of the motor vehicle.
4. The applications are founded on the respective affidavits of the Claimant, Nancy Wambui Muthoga.
5. The Claimant explains that the Respondent terminated her contract on 22nd October 2023, without paying her arrears of salary. She cannot meet her daily needs. She cannot pay her rent, buy food, and meet the cost of her water and electricity utilities. She states that her arrears of salary are protected and immediately payable, invoking Sections 17 and 18 of the Employment Act. She submits that special circumstances exist, to compel the Respondent to immediately pay her arrears of salary.
6. She explains that she was offered the vehicle by the Respondent, whose cost, would be deducted from her salary. She paid Kshs. 465,000, but the Respondent retains the motor vehicle.
7. The applications are opposed through the affidavits of an officer of the Respondent, Meehir Shah, sworn on 27th December 2023. The Respondent alleges that the Claimant owes the Respondent Kshs 2 million; she is not owed any salary; it is in dispute whether the Claimant paid for the motor vehicle; and the ownership of the motor vehicle is similarly in dispute. The Respondent submits that an order of mandatory injunction will only be granted on interlocutory application, where special circumstances exist.
8. The Respondent submits that grant of the orders would result in grant of a major part of the Claim, a result against which the Court of Appeal cautioned, in Kenya Breweries Limited &anotherv Washington O. Okeyo CA 332/ 2000.
9. Parties agreed to have the applications considered and determined, on the strength of their affidavits and submissions.
The Court Finds: - 10. There is nothing in Sections 17 and 18 of the Employment Act, which allows the Court to grant prayers for salary arrears summarily.
11. The Claimant has pleaded the prayers for salary arrears, release, transfer and/or refund of purchase price for the disputed motor vehicle, through her Statement of Claim. The prayers are a major part of the substantive dispute, and cannot be granted summarily, without the benefit of a full hearing.
12. The Court is bound by the decisions of the Court of Appeal on the subject, which have been cited by the Respondent. In Lucy Wangui Gachara v Minudi Okemba Lore [2015] eKLR, the Court of Appeal held that except in the clearest of cases, the right of parties to a fair and proper hearing of their dispute, entailing calling and cross-examination of witnesses, must not be sacrificed or substituted by a summary hearing.
13. In Joseph Kithokoi Mutia v Kenya Power & Lighting Company Limited [2016] eKLR, the Court of Appeal stated that grant of an order of mandatory injunction, would amount to grant of a major part of the relief claimed in the action, and the Court should therefore only allow an order of mandatory injunction, in the clearest of cases. The case has to be unusually clear and strong, before an order of mandatory injunction is granted. This is so even if it is sought to enforce contractual obligations. The Claimant seeks to enforce contractual and statutory obligations, and must prosecute her Claim in full, to enforce those obligations.
14. She must abide the full hearing and outcome of her Claim, to enjoy the orders she seeks through her two interlocutory applications. The Respondent’s right to a fair hearing, must not be disregarded by granting the Claimant her claims in a summary form. It is a right that is equally protected in law.
It is ordered:-a.The applications filed by the Claimant, dated 16th November 2023 and 21st November 2023 are declined.b.Costs in the cause.
DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY AT NAIROBI, UNDER PRACTICE DIRECTION 6[2] OF THE ELECTRONIC CASE MANAGEMENT PRACTICE DIRECTIONS 2020, THIS DAY 14TH OF JUNE 2024. JAMES RIKAJUDGE