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ELRCDismissedCause No. 1644 of 2013 (formerly High Court Civil Case No. 593 of 2010)· [2014] KEELRC 717 (KLR)

Phillystance Nzaro v Kenya Airways Ltd. [2014] KEELRC 717 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
28 January 2014
MNMathews N. Nduma
1,917 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenya Airways employee lost her bid for interim reinstatement and injury compensation because courts demand a very high bar for mandatory injunctions.

What this practically means

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Executive summary

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The Claimant, a former employee of Kenya Airways Limited, filed a Notice of Motion dated 18th October 2013 seeking mandatory injunctions: (i) to compel the Respondent to furnish the notice of accident and documents lodged with the Director of Occupational Health and Safety regarding her workplace injuries; (ii) to reinstate her to her former position with payment of unpaid salary and allowances of Kshs.1,421,007.00; and (iii) to pay Kshs.11,368.32 as compensation under the Work Injury Benefits Act, 2007, pending the hearing of the main suit. The suit originated as High Court Civil Case No. 593 of 2010, arising from injuries allegedly sustained on 28th July 2005 in the course of employment, leading to recommended medical retirement. The Respondent opposed the application through a Replying Affidavit of Lucy Muhiu. The court framed three issues: res judicata, the requirements for a mandatory injunction, and the relief to be granted. On res judicata, the court held that the claims for injury compensation and medical retirement were never determined in Industrial Court Cause No. 1616 of 2012 (the redundancy cause pending on appeal as Civil Appeal No. 46 of 2013), the parties were distinct, and this suit predated that cause; the suit was therefore not res judicata. On the injunction, the court applied the Giella v Cassman Brown principles, holding that mandatory injunctions which would elevate the Applicant above her current position require a more onerous threshold of a clear right. Given hotly contested disputes of fact on the injuries, the notice of accident, and entitlement to medical retirement, and the dependency of reinstatement on the pending appeal, no prima facie case with probability of success was established. The application was dismissed, with a recommendation for expedited hearing of the main suit.

Key legal issues

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01

Res judicata

Holding

The suit is not res judicata as the claims for compensation for injuries and early retirement on medical grounds were never considered in Industrial Court Cause No. 1616 of 2012, and this suit was filed earlier

Reasoning

The parties in Cause No. 1616 of 2012 (the Union and Ministers) are distinct from the present parties, the only common party being Kenya Airways. The prior cause concerned redundancy declarations and reinstatement, not workplace injury compensation or medical retirement. Additionally, this suit was instituted at the High Court before the redundancy cause, and the compensation claim will survive whichever way the pending appeal goes.

p. 3
02

Mandatory interim injunction

Holding

Application fails; no prima facie case with probability of success established for the mandatory injunctions sought

Reasoning

The mandatory injunctions sought would improve the Applicant's position rather than preserve the status quo, attracting a more onerous threshold. Key facts are hotly disputed: whether injuries were sustained in employment, their extent, whether a notice of accident was lodged with the Director of Occupational Health and Safety, and entitlement to medical retirement. Reinstatement also depends on the pending Court of Appeal outcome. Having failed the first Giella threshold, the court did not consider the other requirements.

p. 4

Legal principles established

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  • A party is not precluded by res judicata from litigating an issue that was never enquired into or determined in the previous suit
  • The threshold for a mandatory interim injunction is more onerous than for a prohibitory one; a clear right to the relief must be established

Court orders

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  1. 1.Application dismissed - mandatory injunctions in prayers 2, 3 and 4 not granted
  2. 2.Court recommended an expedient resolution of the main suit

Authorities

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Legislation

  • Work Injury Benefits Act2007

Cases cited (6)

  • Karshe v. Uganda Transport Co. Ltd
    [1967] EA p. 774
  • Gladys Boss Shollei v. Judicial Service Commission
    Petition No. 39 of 2013
  • Mary Alividza & Okoth Mondoh v. Attorney General of Kenya and Secretary General of East African Community
    Application No. 3 of 2010, EALS, Law Digest 295 – 2011 pg. 1
  • Giela v. Cassman Brown
    (1970) EA 358
  • Kenya Airways Limited vs. Aviation and Allied Workers Union
    Court of Appeal at Nairobi Civil Appeal No. 46 of 2013
  • Julius Chacha Mwita v. Kenya Airways Limited
    Industrial Court Petition No. 21 of 2013
Jurisdiction invoked
Reference to the Industrial Court from the High Court (Civil Case No. 593 of 2010) under employment and labour jurisdiction; Work Injury Benefits Act, 2007 invoked

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, "Phillystance Nzaro v Kenya Airways Ltd. [2014] KEELRC 717 (KLR)", Case Analysis (2014). Cause No. 1644 of 2013 (formerly High Court Civil Case No. 593 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/717/eng@2014-01-28

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