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ELRCDismissedIndustrial Cause (Petition dated 14th December 2012)· [2013] KEELRC 669 (KLR)

Domotila Wanzila Muvanya v Insurance Regulatory Authority & 4 others [2013] KEELRC 669 (KLR)

Industrial Court of Kenya
9 July 2013
MMM. Mbaru
5,031 words in judgment
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The bottom line

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Kenya's Industrial Court confirmed it can hear constitutional rights claims arising from employment disputes and kept interim reinstatement orders in place.

What this practically means

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Executive summary

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This ruling of the Industrial Court (M. Mbaru, J) determined two consolidated applications: the respondents' Notice of Motion dated 15th January 2013 and the interested party's Notice of Motion dated 16th January 2013, both seeking to stay, set aside, discharge, review or vary ex-parte conservatory orders granted to the petitioner on 19th December 2012, and to strike out her petition for want of jurisdiction. The petitioner, formerly Senior Procurement Officer of the 1st respondent, had obtained interim orders staying her termination and preserving her job benefits after the interested party was recruited as Head of Procurement, which she alleged amounted to an unfair demotion and dismissal. The respondents and interested party contended the orders were obtained by non-disclosure of material facts, including that the petitioner was merely an unsuccessful candidate for a newly created post. The court first held that it possessed jurisdiction: as a superior court under Article 162(2) with the essential jurisdiction of the High Court limited to employment and labour relations, it could interpret the Constitution and redress rights violations arising from the employment relationship. The strike-out prayer therefore failed. On the interim orders, applying the established principles of probability of success, irreparable harm and balance of convenience, the court found the petitioner's apprehension well founded, the employer bearing the burden under sections 43 and 45 of the Employment Act to prove reasons for termination. It declined to set aside or review the orders, holding that triable issues on her fundamental rights, workplace practices and compliance with the Public Procurement and Disposal Act could not be concluded at the interlocutory stage. The court directed that status quo be maintained pending the hearing of the petition, with costs in the petition.

Key legal issues

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01

Whether the Industrial Court has jurisdiction to hear a petition alleging violation of constitutional rights arising from termination of employment

Holding

The court held it has jurisdiction; the cause of action arose from the employment relationship and the Industrial Court, as a superior court under Article 162(2), can interpret the Constitution and redress rights violations in labour matters.

Reasoning

The court reasoned that the Industrial Court is a superior court with the same status as the High Court under Article 162(2), established to determine whether rights in the Bill of Rights have been violated, with boundaries limited to employment and labour relations. Allowing separate mandates between High Court divisions would create multiplicity of suits from the same cause of action, defeating the constitutional purpose. Section 12 of the Industrial Court Act confers this jurisdiction.

p. 5
02

Whether the ex-parte conservatory orders of 19th December 2012 should be stayed, set aside or varied for non-disclosure of material facts

Holding

The orders were properly granted on a prima facie case with well-founded apprehension of rights contravention; the review limb was not reached as it was subsumed in the first prayer.

Reasoning

Applying the interlocutory injunction principles (probability of success, irreparable harm, balance of convenience), the court found the petitioner had a good reason warranting the interim orders: she was dismissed following the appointment of another person to the head of procurement position. Non-disclosure allegations were not determined because the prima facie case finding disposed of the matter at this stage.

p. 6
03

Whether the interim reinstatement orders should continue given the strained workplace relations

Holding

The court noted section 49(4)(d) of the Employment Act on specific performance in contracts of service but found triable issues exist that cannot be concluded at the interlocutory stage; status quo was maintained.

Reasoning

The court acknowledged the respondents' claim that bad blood exists at the workplace and that the common law discourages specific performance of contracts of service except in exceptional cases. It nonetheless held that an employment relationship is not an ordinary contract; employers should not be able to terminate at will and remedy it in damages. The merits must await the full hearing.

p. 8

Legal principles established

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  • The Industrial Court is a superior court with the status of the High Court, with jurisdiction to interpret the Constitution and enforce fundamental rights in matters arising from employment and labour relations disputes.
  • In a claim arising out of termination, the employer bears the burden of proving the reason or reasons for termination, failing which the termination is deemed unfair.
  • An employment relationship is not an ordinary contract; damages are not a substitute for reinstatement where reinstatement is the right remedy, as employers should not be able to discard employees at will and pay damages.

Court orders

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  1. 1.Application for striking out the Petition for want of jurisdiction dismissed; the court found it is clothed with jurisdiction to hear the Petition
  2. 2.Application to stay, set aside, discharge, review or vary the ex-parte orders of 19th December 2012 declined
  3. 3.Status quo to be maintained pending the hearing of the Petition
  4. 4.Costs in the Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 3, 10, 19, 20, 23, 41, 47, 50, 159(2)(d), 162(2)(a), 165(1), 165(3), 165(5)(b), 232, 236(b), 259(1)
  • Industrial Court Act, 2011sections 3, 12, 16, 21(2)
  • Industrial Court (Procedure) Rulesrules 16(1) and (2), 32(c), (d) and (e)
  • Employment Act, 2007sections 35(4)(b), 43, 45, 49(4)(d), 50
  • Public Procurement and Disposal Act, 2005section 26(4), 26(5)(b)
  • Public Procurement and Disposal Regulations, 2006Regulations 8(3), 13(4), 16(3), 17(2), 20(5), 58(2)
  • Legal Notice No. 174 of 29th December 2006not specified
  • Insurance Actnot specified

Cases cited (3)

  • Beatrice Achieng Osir versus Board of Trustees Teleposta Pension Scheme
    Industrial Cause No. 665 of 2011
  • Habib Bank Attorney General Zurich versus Eugene Marion Yakoub
    Civil Application No. Nairobi 43 of 1982 [1982] LLR 4977
  • Barrack D. Okul versus Esso (K) Ltd
    Civil Case No. 342 of 1988
Jurisdiction invoked
Article 162(2)(a) and 165(5) of the Constitution; sections 12 and 16 of the Industrial Court Act, 2011; Industrial Court (Procedure) Rules rules 16(1)-(2) and 32(c)-(e)

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, "Domotila Wanzila Muvanya v Insurance Regulatory Authority & 4 others [2013] KEELRC 669 (KLR)", Case Analysis (2013). Industrial Cause (Petition dated 14th December 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/669/eng@2013-07-09

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