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ELRCPartially AllowedNotice of Motion Application dated 14th March 2014 (Industrial Court, Nairobi)· [2014] KEELRC 185 (KLR)

Kepha Moreno Bosire v Titus Naikuni & another [2014] KEELRC 185 (KLR)

Industrial Court of Kenya
4 April 2014
3,542 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court allowed a worker to amend his claim but refused to reinstate him, because money compensation could fix any wrongful dismissal.

What this practically means

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Executive summary

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This was a Notice of Motion dated 14th March 2014 by the Claimant, Kepha Bosire, in an employment dispute before the Industrial Court at Nairobi. The Claimant, whose employment with the 2nd Respondent ended in October 2013 following a purported resignation he alleges was signed under duress after an assault by the 1st Respondent, sought stay of his removal from employment, a temporary injunction restraining termination of his employment, an expedited hearing before the 1st Respondent exited the 2nd Respondent's employ, and leave to amend the Memorandum of Claim. The Claimant relied on Giella v Cassman Brown, arguing a prima facie case and that a stay was warranted as the termination did not conform to the contractual notice requirements. The Respondents opposed, contending the resignation was voluntary, that stay and injunction cannot issue over past events, that damages would be an adequate remedy, that no prayer for reinstatement existed in the Claim, and that the cited provisions (Article 31 of the Constitution, Penal Code, Civil Procedure Act) were irrelevant to the Court's jurisdiction. The Court applied the Giella principles sequentially, holding that although a prima facie case existed on the manner of termination, no irreparable loss was shown since compensation was available, and the balance of convenience favoured the Respondents. On amendment, following Eastern Bakery v Castelino and other authorities, the Court allowed the proposed amendments but disallowed the injunctive relief, holding that Rule 16 of the Industrial Court (Procedure) Rules 2010 preserved the application despite irrelevant citations. Each party was to bear its own costs.

Key legal issues

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01

Whether interlocutory injunctive/stay relief should issue over a concluded termination

Holding

No - the injunction test fails on irreparable injury and balance of convenience; the status quo is without the Claimant

Reasoning

The court applied Giella v Cassman Brown sequentially. It accepted a prima facie case on the manner of termination but found no irreparable loss because compensation is an available remedy, and the balance of convenience favoured the 2nd Respondent since the status quo was without the Claimant. The events occurred 5 months before the application and the prayer is inconsistent with a damages claim.

p. 4
02

Whether the proposed amendment of the Memorandum of Claim should be admitted

Holding

Yes - the discretion to allow amendment at any stage is unfettered and no injustice was shown

Reasoning

Relying on Eastern Bakery v Castelino and Jenipher Gumba Oyoo v Kenindia Assurance, the court held amendments should be freely allowed before hearing where the other side can be compensated by costs, and the amendment would not change the character of the action or prejudice accrued defences such as limitation.

p. 5
03

Whether citation of irrelevant provisions (Article 31, Penal Code, Civil Procedure Act) defeated the application

Holding

No - Rule 16 of the Industrial Court (Procedure) Rules 2010 saved the application

Reasoning

The court found the extraneous citations a flaw but not fatal because Rule 16 was properly invoked, and the Industrial Court's statutory power under the Industrial Court Act 2011 supports interim preservation orders. The court may also resort to Civil Procedure Rules where lacunae exist in its own Rules.

p. 5

Legal principles established

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  • The Giella v Cassman Brown principles for interlocutory injunctions are to be applied sequentially
  • The Industrial Court has power to grant interim preservation orders including injunctions in cases of urgency
  • Amendments to pleadings may be allowed at any stage of the proceedings where no injustice is caused to the other side
  • Wrong citation of legal provisions is not fatal where a valid basis such as Rule 16 of the Industrial Court (Procedure) Rules 2010 is invoked

Court orders

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  1. 1.The amendments sought by the Claimant to the Memorandum of Claim are allowed
  2. 2.The injunction/stay sought (prayers 4, 5, 6 and 7 of the Application) is disallowed
  3. 3.No order as to costs - each party bearing own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 31
  • Industrial Court (Procedure) Rules 2010Rule 16(1)
  • Civil Procedure ActSections 1A and 3A
  • Law Reform Act cap 26 Laws of KenyaSections 8 and 9
  • Penal CodeSection 250
  • Labour Institutions ActSection 12(4)
  • Industrial Court Act 2011Section 12
  • Constitution of KenyaArticle 159

Cases cited (7)

  • Giella v. Cassman Brown & Co. Ltd
    [1973] E.A. 358
  • Jenipher Gumba Oyoo v. Kenindia Assurance Company Limited
    [2011] eKLR
  • Eastern Bakery v. Castelino
    (1958) EA 461
  • Charles Ndirangu Kamau & 6 Others v William Kimani Thuku & 5 Others
    [2012] eKLR
  • Kenyatta National Hospital v Kenya Commercial Bank Limited
    [2003] E A 528
  • D.T. Dobie v Muchina
    [1982] KLR 1
  • Leroka v Middle Africa Finance Company Limited
    [1990] KLR 549
Jurisdiction invoked
Rule 16(1) of the Industrial Court (Procedure) Rules 2010 and Section 12 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, "Kepha Moreno Bosire v Titus Naikuni & another [2014] KEELRC 185 (KLR)", Case Analysis (2014). Notice of Motion Application dated 14th March 2014 (Industrial Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/185/eng@2014-04-04

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