Barclays Bank of Kenya Ltd v Banking, Insurance & Finance Union (kenya)
The bottom line
#Kenya's Court of Appeal set aside sweeping interim orders against Barclays Bank, ruling that losing a job is compensable harm, not irreparable harm.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial court exercised its discretion judiciously in confirming the interim orders
It did not: the court leapfrogged from prima facie case to balance of convenience, omitting the irreparable-harm limb, and issued mandatory and effectively final orders at an interlocutory stage.
The Giella principles must be applied sequentially as separate hurdles. The trial court relied on clause 18(d) of the Recognition Agreement and jumped to balance of convenience without considering whether damages were an adequate remedy. Two orders were mandatory injunctions granted without the higher threshold, and the orders effectively determined the main suit without a trial.
Whether the interim orders were final in nature and disposed of the main suit
Yes; orders declaring disciplinary processes null and void and compelling union participation in future internal processes effectively determined the main suit without the benefit of a trial.
The claim as pleaded related to a single named employee yet the orders undid decisions on all other employees and applied to future unspecified proceedings. Interlocutory decisions on the crux of the dispute (whether grievance and disciplinary proceedings are the same) should await trial evidence.
Whether loss of employment or denial of union representation amounts to irreparable harm
No; section 41 of the Employment Act and section 49 provide compensatory remedies, so the eventuality of losing employment is not irreparable.
The burden was on the respondent to show irreparable damage from lack of union representation at capability assessments. Section 41 guarantees fair hearing at the pain of high compensatory damages for wrongful or unfair termination, making damages an adequate remedy.
Legal principles established
#- An appellate court will not interfere with a trial court's exercise of discretion unless the court misdirected itself in law, misapprehended the facts, took into account irrelevant or failed to take into account relevant considerations, or its decision is plainly wrong.
- An interlocutory mandatory injunction will only be granted in clear cases or where special circumstances exist, and the court must feel a high degree of assurance that it would be upheld at trial.
- A trial court deciding an interlocutory injunction application must apply the Giella principles sequentially and consider irreparable harm; if damages are an adequate remedy, no interlocutory injunction should normally issue.
Court orders
#- 1.The orders given by the trial court on 27th April, 2017 and issued on 28th April, 2017 are set aside
- 2.The orders given on 15th November, 2017 and issued on 27th February, 2018 are set aside
- 3.An order dismissing the notice of motion dated 27th April, 2017 is substituted
- 4.The parties are directed to proceed with expedition to have the main Claim heard and disposed of on merits
- 5.No order as to costs
- On appeal from
- Employment and Labour Relations Court at Nairobi
- ELR Cause No. 790 of 2017
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the Employment and Labour Relations Court; appeal against a Ruling dated 15th November 2017 in ELR Cause No. 790 of 2017
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Elijah Chingosho, Chairman of The Afraa Disciplinary Committee & 1 other v Juliet Indetie[2025] KECA 969 (KLR)23 May 2025applied
- Brandlife Kenya Limited v Anne Koskei[2025] KECA 100 (KLR)24 Jan 2025applied
Cite this brief
#Cite this brief
Caselaw, "Barclays Bank of Kenya Ltd v Banking, Insurance & Finance Union (kenya)", Case Analysis (2019). Civil Appeal No. 56 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/408/eng@2019-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.