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ELRCAllowedNot stated in judgment

Banking, Insurance & Finance Union (Kenya) v Access Bank (Kenya) Plc [2021] KEELRC 264 (KLR)

Employment and Labour Relations Court
18 November 2021
1,235 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered a bank to pay seven employees their withheld October salaries because status quo orders had preserved their employment.

What this practically means

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Executive summary

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The claimant trade union moved the court by application dated 27th October 2021 seeking an order compelling the respondent bank to pay the 7 grievants their salaries and allowances for October 2021. The grievants' employment had been preserved by interim orders issued on 17th September 2021, when the claimant's earlier application seeking to restrain termination was certified urgent, with the parties repeatedly directed to maintain the status quo pending the hearing and the ruling scheduled for 4th November 2021. When other employees were paid in early October 2021, the grievants were left out. The respondent opposed the application through Grounds of Opposition, arguing it was premature because the grievants' employment had not been terminated and they remained in employment on term contracts which the respondent was not obliged to renew. Applying KALPA v Co-operative Bank and the Baobab Beach Resort authorities, the court held that a status quo order preserves the substratum of the dispute as it existed when made, without requiring proof of a prima facie case. Since the grievants were in employment when the orders issued and their employment was preserved, the court found they were entitled to October 2021 salaries like other employees, and that withholding pay contrary to the orders was contempt and contrary to section 46 of the Employment Act. The application was allowed: the respondent was ordered to pay the grievants' October 2021 salary and allowances and all outstanding dues forthwith, with interest at court rates from the date due until payment in full, and the claimant was awarded costs. Delivered at Nairobi in open court on 18th November 2021 by M. Mbaru, Judge.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent was obliged, under the subsisting status quo orders, to pay the 7 grievants their salaries and allowances for October 2021 like other employees
  2. 2.Whether the application to compel payment was premature given the respondent's assertion that the grievants remained in employment

Key legal issues

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01

Whether the grievants were entitled to October 2021 salaries notwithstanding the pending main application

Holding

Yes; the status quo orders preserved their employment, and payment of October 2021 salaries followed as a matter of course.

Reasoning

The court found that when the claimant moved the court the grievants were in employment, and orders of 17th September 2021 and subsequent attendances directed maintenance of the status quo pending the ruling. The respondent admitted the grievants' employment had not been terminated and they remained in employment. Therefore they were entitled to the same salaries/wages paid to other employees, and withholding pay breached the orders and section 46 of the Employment Act.

p. 2
02

The nature and effect of a status quo order

Holding

A status quo order is an ancillary order preserving the situation as it exists pending hearing; it is distinct from an injunction and does not depend on proof of a prima facie case.

Reasoning

Relying on KALPA v Co-operative Bank and the Baobab Beach Resort judicial review authority, the court explained that status quo preserves the substratum of the dispute so that neither party is prejudiced such that the position cannot be restored. The orders of 17th September 2021 preserved the suit's substratum to allow exchange of pleadings and hearing of the certified urgent application.

p. 2

Legal principles established

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  • A status quo order preserves the subject matter as it existed on the day the order was made so the dispute is not rendered nugatory.
  • An order for status quo is ancillary and does not depend on proof of a prima facie case, unlike an injunction.
  • Where employment is preserved by status quo orders, the employee remains entitled to salaries and wages like other employees; withholding pay contrary to such orders is contempt and contrary to section 46 of the Employment Act.

Court orders

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  1. 1.The respondent shall pay the grievants salary and allowances for the month of October, 2021 and all/any other dues outstanding and unpaid forthwith
  2. 2.Such dues unpaid to date shall be paid with interest at court rates from the date due and until paid in full
  3. 3.The claimant is awarded costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Not expressly stated; matter determined under the Employment Act, 2007 in a cause pending before the Employment and Labour Relations Court

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the respondent shall pay the grievants salary and allowances for the month of October, 2021 and all/any other dues outstanding and unpaid forthwith; such dues unpaid to date shall be paid with interests at court rates from the date due and until paid in full.
p. 2Final orders - payment of October 2021 dues
To separate the grievants for any other reasons save as directed by the court is an act of contempt and contrary to section 46 of the Employment Act, 2007.
p. 2Consequences of withholding pay under status quo orders
an order for status quo to be maintained is different from an order of injunction both in terms of the principles for grant and the practical effect of each.
p. 2Nature of status quo orders

Issues in the judgment

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minor

The narrative states the court heard the parties on 7th October 2021 in one passage but elsewhere says the hearing was on 18th October 2021 with ruling reserved for 4th November 2021, creating internal inconsistency on the hearing date.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Banking, Insurance & Finance Union (Kenya) v Access Bank (Kenya) Plc [2021] KEELRC 264 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/264/eng@2021-11-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.