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ELRCDismissedNot stated in the judgment· [2013] KEELRC 714 (KLR)

Nancy Waiyego Irungu v Old Mutual Life Assurance Co Ltd [2013] KEELRC 714 (KLR)

Industrial Court of Kenya (now Employment and Labour Relations Court)
29 July 2013
LNLINNET NDOLO
1,336 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Industrial Court confirmed it can handle employment-linked land disputes, but refused to stop a property sale because the borrower showed no effort to repay.

What this practically means

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Executive summary

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The Applicant, a former employee of the Respondent since 1994, was retired on medical grounds in December 2009. She contends she was coerced into opting for early retirement and has filed a Petition (transferred from the High Court to the Industrial Court in 2012) seeking reinstatement and damages. In the course of her employment she obtained loans secured by a legal charge over her property, Muguga/Gitaru/1359, and an outstanding balance of Kshs. 2,775,159.20 remained unpaid. After a statutory notice of sale was issued in March 2013, she filed a Notice of Motion on 24th June 2013 seeking an injunction restraining the Respondent from exercising its statutory power of sale under Section 90(1) of the Land Act, 2012. The Respondent objected that the Court lacked jurisdiction over land matters and that the application was defective. The Court first held that it had jurisdiction, finding a legal nexus between the loan default and the cessation of employment which was the subject of the pending Petition, relying on its earlier decision in Abraham Nyambane Asiago v Barclays Bank of Kenya Limited. On the merits, applying the Giella v Cassman Brown principles, the Court noted both parties claimed irreparable harm, but observed that the Applicant had paid only Kshs. 100,000 in four years with no evidence of further effort. Holding that a party seeking an injunction must show effort towards ameliorating the situation, the Court declined the injunction. It made no order for costs.

Key legal issues

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01

Jurisdiction of the Industrial Court over land disputes connected to employment

Holding

The Industrial Court has jurisdiction where there is a legal nexus between the dispute and the employment relationship, even if the subject matter involves land

Reasoning

Article 162(2)(a) and Section 12(1)(a) of the Industrial Court Act confer jurisdiction over disputes relating to or arising out of employment. The employment relationship generates rights and obligations beyond the express contract. Since the Applicant's loan arrears arose from cessation of employment, which is the subject of a pending Petition, the application was properly before the Court.

p. 3
02

Whether an interlocutory injunction should issue to restrain exercise of statutory power of sale

Holding

Injunction declined because the Applicant was not making effort to ameliorate her loan arrears

Reasoning

Applying the Giella v Cassman Brown principles, both parties claimed irreparable harm. However, the Applicant had paid only Kshs. 100,000 in four years towards the loan and no evidence of further effort was placed before the Court. The Court held that a party seeking an injunction must show effort towards ameliorating the situation.

p. 3

Legal principles established

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  • Disputes arising from the employment relationship extend beyond the express terms of the employment contract and fall within the Industrial Court's jurisdiction under Article 162(2)(a)
  • In granting an injunction, the Court must be satisfied that the party seeking the order is making effort towards ameliorating the situation

Court orders

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  1. 1.The order for injunction is declined
  2. 2.No order for costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(a)
  • Industrial Court Act, 2011Section 12(1)(a)
  • Land Act, 2012Section 90(1)
  • Civil Procedure RulesNot specified

Cases cited (2)

  • Abraham Nyambane Asiago Vs Barclays Bank of Kenya Limited
    [2013] eKLR
  • Giella Vs Cassman Brown & Co Ltd
Jurisdiction invoked
Article 162(2)(a) of the Constitution and Section 12(1)(a) of the Industrial Court Act, 2011

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, "Nancy Waiyego Irungu v Old Mutual Life Assurance Co Ltd [2013] KEELRC 714 (KLR)", Case Analysis (2013). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/714/eng@2013-07-29

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