Mwalimu Kithome Musau v Kenya Water Institute & another [2013] KEELRC 180 (KLR)
The bottom line
#Kenya's Employment Court refused to stop a director's suspension and pending termination, ruling he had already been heard and could be compensated later if he wins at trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant established grounds for interlocutory injunctive relief against termination of his employment
The application was dismissed because no prima facie case with a probability of success was established and no demonstration was made that damages would be inadequate
At an interlocutory stage the court applies the Giella v Cassman Brown criteria, now utilized with caution in light of the Bill of Rights in the 2010 Constitution. The court found the claimant had been given an opportunity to answer the allegations against him before the ad hoc committee, which rebutted claims of breach of the right to be heard, and that the claimant had not addressed the substance of the findings of the investigations.
Whether the claimant was accorded a hearing before the disciplinary process
The court found he was fully involved and heard, rebutting the claim of absence of a hearing
The ad hoc committee of the Governing Council involved the claimant in the deliberations concerning complaints against him, and he was offered an opportunity to answer all allegations in full. The court treated this as an opportunity of being heard sufficient, at this interlocutory stage, to rebut assertions of procedural unfairness under section 41 of the Employment Act.
Validity of the 2nd respondent's replying affidavit
The affidavit was defective for non-disclosure of the date of swearing, leaving the 1st respondent's grounds of opposition as the only sustainable defence; leave was however granted to regularize it
The court observed that the replying affidavit sworn by the 2nd respondent did not indicate the date it was sworn. This omission rendered the entire affidavit defective and inappropriate as a defence. Nevertheless, the court extended leave to the party to rectify and regularize the affidavit, noting the defect also in the 1st respondent's answering papers.
Legal principles established
#- An applicant for an interlocutory injunction must establish a prima facie case with a probability of success and demonstrate that damages would not be an adequate remedy, per Giella v Cassman Brown, applied with caution under the Bill of Rights in the Constitution of Kenya, 2010
- A replying affidavit that does not disclose the date of swearing is defective and cannot stand as a defence
Court orders
#- 1.This application be and is hereby dismissed with costs
- 2.The interim orders issued on 24th May, 2013 in terms of prayers 1 and 2 of the Notice of Motion of the same date be and are hereby vacated and or discharged
- 3.The 2nd respondent be and is hereby awarded leave to rectify and regularize his replying affidavit
- 4.The costs of this application shall be borne by the Claimant/Applicant
- Jurisdiction invoked
- Not expressly stated; employment and labour relations dispute under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwalimu Kithome Musau v Kenya Water Institute & another [2013] KEELRC 180 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/180/eng@2013-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.