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ELRCDismissedCause No 1984 of 2013· [2014] KEELRC 698 (KLR)

Joab Mehta Oudia v Coffee Development Board of Trustees [2014] KEELRC 698 (KLR)

Industrial Court of Kenya
7 February 2014
JRJames Rika
1,450 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to reinstate a dismissed employee before trial, ruling reinstatement is a final remedy reserved for full hearings.

What this practically means

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Executive summary

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The Claimant, employed as a procurement officer by the Respondent, filed a Statement of Claim on 10th December 2013 seeking declarations that his termination on 4th November 2013 was unfair and violated the Employment Act 2007, together with compensation, reinstatement, damages, mesne profits, terminal benefits and costs. He simultaneously sought interim orders staying his termination, reinstating him, barring recruitment to his former position, and staying the appointment of Bernard Atonga as Acting Procurement Manager. The Respondent asserted the Claimant was on probation and that termination was lawful under his contract. The Court disposed of the application on written submissions. It found prima facie that the Claimant was under probation at termination, having been employed on 13th December 2012 on a 6-month probation extended by 3 months, so section 42(1) of the Employment Act 2007 applied and he was not entitled to the procedural guarantees claimed. It held reinstatement is ordinarily a substantive remedy granted only after full hearing; that the Court cannot stay an employer's termination decision or bar recruitment, as this would usurp management prerogative; and that staying Atonga's appointment would abridge his accrued rights without a hearing. The Court distinguished the authorities cited by the Claimant and followed the Respondent's authorities. The application was disallowed with no order on costs, and the Claimant was directed to prosecute his claim expeditiously.

Key legal issues

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01

Whether the Claimant was on probation at termination

Holding

Prima facie yes; section 42(1) of the Employment Act 2007 applies and he would not be entitled to the procedural guarantees claimed

Reasoning

The Claimant was employed on 13th December 2012 on a 6-month probation which lapsed in July 2013 and was extended by 3 months in August 2013. The Court found prima facie evidence that he was under probation at termination on 4th November 2013, so section 42(1) governed, though this preliminary view could change after full hearing.

p. 2
02

Whether interim reinstatement or stay of termination should issue

Holding

No - reinstatement is a substantive remedy to be granted only after full hearing

Reasoning

The Court held it cannot stay an employer's termination decision or bar recruitment, as that would amount to exercising management prerogative. The employer bore the burden of justifying termination at trial, but this did not justify interlocutory reinstatement; the Claimant could claim back wages with any substantive remedy.

p. 2
03

Whether third-party rights of the Acting Procurement Manager bar the orders sought

Holding

Yes - staying his appointment would abridge his accrued employment rights without a hearing

Reasoning

The Court reasoned that staying Bernard Atonga's appointment would judge him without hearing him, offending his rights under the Employment Act and the Constitution. The law does not intend that the Court offends one employee's rights in protecting another's.

p. 3

Legal principles established

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  • Interim reinstatement is not granted; reinstatement is ordinarily a substantive remedy granted after full hearing
  • The Court will not stay an employer's termination decision or bar recruitment at the interlocutory stage, as this would usurp management prerogative
  • An employer who dismisses an employee does not render reinstatement impracticable by filling the vacancy
  • Probationary employees under section 42(1) of the Employment Act are not entitled to the full procedural guarantees claimed

Court orders

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  1. 1.The application is disallowed
  2. 2.No order on costs

Authorities

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Legislation

  • Employment Actsection 42(1)

Cases cited (4)

  • Alfred Nyungu Kimungui v the Bomas of Kenya
    Industrial Court Cause Number 620 of 2013
  • Professor Gitile Naitule v. University Council Multimedia University College and Another
    Industrial Court Cause Number 1200 of 2012
  • Jane Frances Ominde Munyakoh v. Imaging Solutions Limited
    Cause Number 1491 of 2011
  • Engineer Stephen Gichuki v. the Kenya Ports Authority
    Industrial Court Cause Number 1464 of 2012
Jurisdiction invoked
Employment Act 2007 / Industrial Court first-instance jurisdiction (not expressly stated)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (20)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joab Mehta Oudia v Coffee Development Board of Trustees [2014] KEELRC 698 (KLR)", Case Analysis (2014). Cause No 1984 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/698/eng@2014-02-07

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