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Court of AppealAllowedCivil Appeal No. 56 of 2018· [2019] KECA 408 (KLR)

Barclays Bank of Kenya Ltd v Banking, Insurance & Finance Union (kenya)

Court of Appeal of Kenya
19 July 2019
4,194 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Court of Appeal (Waki, Nambuye and Makhandia, JJ.A) allowed an interlocutory appeal by Barclays Bank of Kenya against interim orders of Wasilwa, J of the ELRC restraining the bank from subjecting unionisable employees to disciplinary or capability hearings without union representation. The dispute arose from the bank's PDP and PIP performance management tools and from competing interpretations of a Recognition Agreement and CBA, after a prior ELRC judgment by Mbaru, J (ELRC Cause No. 95 of 2014) which the union did not appeal but instead re-litigated by filing a fresh suit (Cause No. 790 of 2017) with a notice of motion for injunction. The ex parte orders granted on 28th April 2017 were confirmed on 27th February 2018. The appellate court framed a single question: whether the trial court exercised its discretion judiciously. It held that the trial court failed to apply the Giella principles sequentially, leapfrogging from prima facie case to balance of convenience without considering whether damages were an adequate remedy. Two of the orders were mandatory injunctions granted without the special circumstances or clarity required at an interlocutory stage, and the orders were final in substance, effectively determining the main suit without trial. The court also held that loss of employment is not irreparable harm given the compensatory remedies under sections 41 and 49 of the Employment Act. The appeal was allowed, the interim orders set aside, the notice of motion dismissed, and the parties directed to expedite the hearing of the main claim. There was no order as to costs.

Key legal issues

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01

Whether the trial court exercised its discretion judiciously in confirming the interim orders

Holding

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.

Reasoning

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.

p. 6
02

Whether the interim orders were final in nature and disposed of the main suit

Holding

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.

Reasoning

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.

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Whether loss of employment or denial of union representation amounts to irreparable harm

Holding

No; section 41 of the Employment Act and section 49 provide compensatory remedies, so the eventuality of losing employment is not irreparable.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The orders given by the trial court on 27th April, 2017 and issued on 28th April, 2017 are set aside
  2. 2.The orders given on 15th November, 2017 and issued on 27th February, 2018 are set aside
  3. 3.An order dismissing the notice of motion dated 27th April, 2017 is substituted
  4. 4.The parties are directed to proceed with expedition to have the main Claim heard and disposed of on merits
  5. 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

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.