1. By a Notice of Motion Application date expressed to be under Rules 44 and 45 of the ELRC (Procedure) Rules, 2024, Sections 3 and 12 of the Employment and Labour Relations Court Act, 2014, Sections 5, 10, 18 and 45 of Employment Act, Articles 27, 29, 41 and 47 of the Constitution, the Claimants/Applicants seek the following orders;
I. THAT, this application be certified as urgent, service be dispensed with and be heard ex parte in the first instant.
II. THAT, pending the hearing and determination of this application or further orders of this court, an order of injunction does issue to restrain any payment from the account of the 1st Respondent held with the interested party for payments of salaries to other employees, if the payroll does not include the salaries of the Claimants; and in the alternative
III. THAT, pending the hearing and determination of the application or further orders of this court, an order of injunction does issue to restrain any payments from the account of the Respondent held by the interested party in excess of the salary arrears and of this month due to the Claimants and the same be held by the interested party.
IV. THAT, pending the hearing and determination of the Claim or further orders of this court, an order of injunction does issue to compel the Respondents to continue paying the salaries of the Claimants, when they fall due.
V. THAT, the costs of this application be borne by the 2nd and 3rd Respondents.
2. The Application is supported by the supporting affidavit sworn by the 1st Applicant on his behalf and that of the other Applicants.
3. It is stated that the 1st Applicant is an employee of the 1st Respondent and designated as the Organising Secretary of the 1st Respondent, with effect from 4th April, 2024.
4. The 2nd Claimant was employed in August, 2014, but was confirmed to the position of the Chief Industrial Relations Officer, with effect from 3rd January, 2015. Further, the 3rd Claimant has been employed as the Membership Officer since 2014.
5. It is further stated that the Claimants have been on the payroll of the 1st Respondent and have continued to be paid through its payroll.
6. The Applicants contend that the 2nd and 3rd Respondents discontinued to pay the 1st Claimant’s salary and that of the 3rd Claimant for the month of February 2026, while they paid the rest of the other employees, including themselves. They also discontinued to pay the 2nd Claimant's salary for five (5) months, including the month of February 2026.
7. The Claimants/ Applicants state further that the 2nd and 3rd Respondents are mandated under Article 19 of the Constitution of the 1st Respondent and Section 3.3(3) & (4) of Finance Policy and Procedures Manual to authorise payments from the funds of the 1st Respondent and to make all payments from the funds of the 1st Respondent, respectively.
8. The 2nd and 3rd Respondents threatened and continue to threaten that they are not going to pay the Claimants their salaries. The threats are without any justifiable basis. The 1st Respondent’s National Executive Committee has not made a decision that would be the basis for the withholding of their salary.
9. The Respondents oppose the Claimants' application on the grounds set out in the replying affidavit sworn by Sulman Owour, the 2nd Respondent.
10. They contend that the instant application is misguided as it seeks the court to interfere with the 1st Respondent’s managerial prerogative on matters of payroll. The law hasn’t bestowed such a mandate on the court. The only legal avenue available to the Claimants if aggrieved by the actions of the 1st Respondent is a claim for constructive dismissal.
11. The Respondents did not pay the salaries of the Claimants as they were waiting for guidance that was to be given by the Registrar of Trade Unions through its Forensic Audit that was sanctioned by the Court vide the Judgment delivered in Mombasa Employment and Labour Relations Court Cause No. E025 of 2025; Amin Iloti & others v. Simon Kiprono Sang & others.
12. It is contended that through the aforesaid judgment, the court noted:
a. The 3rd Claimant is the Secretary General of Boda-boda, Tuk-tuk and Taxi (Bottax) Workers Union. As such, she cannot simultaneously serve as a salaried Membership Officer in the Dock Workers Union. In light of the Forensic Audit Report dated 1st April, 2026, the 1st Defendant should suspend the employment of the 3rd Claimant and seek to recover the sum of Kshs. 1,301,749.00, which she has received whilst working at Botax Union.
b. The 2nd Claimant was employed as a legal officer by Simon Kíprono Sang without following the due procedures of employment through the 1st Respondent's board. However, the 2nd Claimant does not have the requisite qualification of a legal officer. The aforementioned report directs the 1st Respondent to recover the sum of Kshs. 1,928,386.00.
c. The 1st Claimant's employment contract was also extended by Simon Kiprono Sang without the approval of the Board.
13. The instant suit is an afterthought. Upon learning of the judgment delivered in the Mombasa Employment and Labour Relations Court, Cause No. E025 of 2025, and before the 1st Respondent could initiate disciplinary proceedings against the Claimants, as directed by the Forensic Audit Report dated 1st April, 2026, the Claimants filed the current cause to try and have the Respondents continue paying their salaries, yet their employment status is illegal and/or fraudulent.
14. The Claimants have initiated the current suit so as to prevent the Respondent from initiating their disciplinary process against them following the Forensic Audit Report dated 1st April, 2026.
15. The Claimants' employment status is irregular and/or illegal, and they cannot enforce such irregular contracts before a court of law.
Analysis and Determination
16. I have carefully considered the Claimants' application, the ground upon which it is premised, the affidavit in support thereof, and the replying affidavit, and a single issue emerges for determination: whether the Claimant’s application is meritorious.
17. Courts should exercise great circumspection when invited to grant interlocutory orders, so as to avoid making determinations that have the practical effect of conclusively resolving the substantive dispute before a full hearing. Interlocutory proceedings are intended to preserve the subject matter of the dispute pending trial, and not to finally pronounce upon contested rights and obligations. Where interim orders effectively dispose of the suit, the court risks prejudicing issues that ought to be determined upon consideration of the evidence and submissions at the substantive hearing.
18. It is for this reason that courts are enjoined to maintain fidelity to the principle that parties ought to be accorded a full opportunity to ventilate their respective cases before final orders are made. Granting dispositive relief at the interlocutory stage may not only occasion prejudice to one party but also undermine the very essence of a fair hearing.
19. I have carefully examined the Claimant’s pleadings and, more particularly, the reliefs sought; no doubt, granting prayers [2] and [3] of the application would have the unfortunate effect of disposing of the substantive suit at this interlocutory point.
20. It makes little sense that the Claimants are pursuing payment of their salary fervently, contending that the continued non-payment of the same is a breach of their statutory right, yet they are under the same application, urging the court to give orders that would lead to the deprivation of other people of their salary.
21. It is for the foregoing premises that I decline limbs [2] and [3] of the Application.
22. The Respondents admit that the Claimants have been and are in the employment of the 1st Respondent. They further admit that the Claimants have not been paid their salaries, alleging that they were wrongly and improperly employed. What comes out clearly is the fact that the Claimant’s employment contracts of service have not been terminated on account of the fact that they were irregularly employed or for any other reason. The Employment Act heavily protects employee salaries and wages. An employer cannot unilaterally withhold an employee’s salary on the grounds that they have not even invited an employee to defend themselves.
23. It is for the foregoing reason that I direct that the 1st Respondent shall continue paying the Claimants their salaries pending the hearing and determination of this suit.
24. Orders accordingly.
Read Signed and Delivered this 7th Day of April 2026.