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Court of AppealDismissedCivil Application E435 of 2021

Florence Wairimu Muturi v Nelson Andayi Havi & 21 others

Court of Appeal
19 August 2022
4,203 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 confirmed that conservatory orders require passing the full Giella test first, and dismissed the LSK dismissal appeal.

What this practically means

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Executive summary

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The appellant, Deputy Secretary and Director of Compliance and Ethics at the Law Society of Kenya, was summarily dismissed by letter signed by the LSK President. She petitioned the ELRC alleging violations of Articles 41, 47 and 50 of the Constitution, the Employment Act and the Fair Administrative Actions Act, seeking declaratory, certiorari and injunctive relief, and moved for conservatory orders pending the petition. The ELRC (Nzioki wa Makau, J) dismissed the motion, holding that although a prima facie case was established, damages under section 49 of the Employment Act and constitutional remedies would be adequate, and the balance of convenience tilted against relief since a replacement had been recruited. On appeal, the Court of Appeal (Okwengu, Sichale and Laibuta, JJA) held that the prayers sought were conservatory orders, but that the Giella v Cassman Brown requirements are sequential: having failed to demonstrate that damages would be inadequate, the appellant could not invoke the further public-interest threshold in the Supreme Court's Munya decision. The Court also noted her salary was protected by a separate Milimani Court injunction. Discerning no error, misdirection or abuse of discretion, the Court upheld the ELRC ruling, dismissed the interlocutory appeal, declared the notice of motion dated 3rd August 2021 spent, and made no order as to costs. The substantive petition remains pending before the ELRC.

Questions the Court framed

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

  1. 1.Whether in refusing to grant the injunction/conservatory order the learned Judge erroneously applied the Giella vs Cassman Brown principles instead of the conservatory-order principles in the Munya decision
  2. 2.Whether the finding that damages would be an adequate remedy was arrived at in error and in disregard of the public interest

Key legal issues

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01

Whether the ELRC erred in applying Giella v Cassman Brown instead of the Munya conservatory-order principles

Holding

No error: the orders sought were conservatory orders, but the Giella threshold is a necessary first step, and the appellant failed it; the Munya public-interest limb only arises thereafter

Reasoning

The Court held that the prayers sought were conservatory orders preserving the appellant's position. However, the Giella requirements are sequential; having failed to show that damages would be inadequate, the appellant could not leap-frog to the Munya public-interest threshold. The Judge therefore correctly declined to go beyond Giella.

p. 7
02

Whether damages were wrongly held to be an adequate remedy

Holding

No: the appellant did not demonstrate that loss of her position or the alleged constitutional violations could not be compensated by damages

Reasoning

The appellant's main concern was preservation of her position, but she did not demonstrate that its loss was irreparable. Her salary was in any event being paid pursuant to a separate Milimani Court injunction, so her interest was protected and conservatory orders were unnecessary.

p. 7
03

Whether the appellate court should interfere with the ELRC's discretionary refusal of conservatory orders

Holding

No error, misdirection or abuse of discretion was discerned; the discretion was properly exercised

Reasoning

Applying the Nguruman standard for interference with discretion, the Court found no misdirection or abuse. The appellant had also failed to establish the factors upon which conservatory orders could be granted, so the Judge could not be faulted for refusing them.

p. 8

Legal principles established

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  • An applicant for conservatory orders must first satisfy the sequential three-tier Giella v Cassman Brown test before invoking the further public-interest threshold in the Munya decision
  • A finding on adequacy of damages made at an interlocutory stage is preliminary and does not bar the trial court from departing from it at the hearing of the petition
  • An appellate court will not interfere with a lower court's exercise of discretion absent misdirection, failure to consider relevant matters, or clear abuse of discretion

Court orders

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  1. 1.The order of the learned Judge (ELRC) dismissing the notice of motion dated 19th July 2021 is upheld
  2. 2.The interlocutory appeal is dismissed
  3. 3.The notice of motion dated 3rd August 2021 is spent
  4. 4.No costs awarded - each party to bear own costs in the circumstances

The bench

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

majority
majority
majority
On appeal from
Employment and Labour Relations Court
ELRC Petition No. 116 of 2021
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over an interlocutory appeal from the ELRC (ruling on a notice of motion under Article 23(3) of the Constitution)

Relief refused

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Conservatory orders staying the decision summarily dismissing the appellant and preserving her position as Deputy Secretary and Director of Compliance and Ethics

Appellant failed to meet the sequential Giella test, particularly that damages would not be an adequate remedy, and demonstrated no public interest element

p. 7

Injunction staying the recruitment/replacement to the position of Director of Compliance and Ethics

Balance of convenience tilted against the grant; a replacement had already been recruited and the appellant's salary was protected by a separate Milimani Court injunction

p. 7

Costs

No costs awarded; given the circumstances of the case the Court did not find it appropriate to award any costs (each party to bear their own costs).

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.

In order for the appellant to lay a proper basis for the issuance of conservatory orders, she had to first meet the threshold set in Giella vs. Cassman Brown, that is the three sequential requirements of first establishing a prima facie case with a probability of success; secondly, showing that damages would not be an adequate remedy; and, thirdly, demonstrating that the balance of convenience tilts in her favour.
p. 7sequential test for conservatory orders
The finding made by the learned Judge was a preliminary finding made on the basis of the limited information that was before the court at that interlocutory stage. It does not bar that court from departing from that finding should further information leading to a contrary view be placed before it at the hearing of the petition.
interlocutory findings not binding at trial
we have not discerned any error, misdirection or abuse of discretion committed by the learned judge such as to justify our interference with the exercise of his discretion in refusing to grant the conservatory order.
p. 8non-interference with judicial discretion
The upshot of the above is that we uphold the order made by the learned Judge and dismiss the interlocutory appeal. Consequently, the notice of motion dated 3rd August 2021 is spent. Given the circumstances of this case we do not find it appropriate to award any costs.
p. 8final orders and costs

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, "Florence Wairimu Muturi v Nelson Andayi Havi & 21 others", Case Analysis (2022). Civil Application E435 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/938/eng@2022-08-19

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