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ELRCDismissedNot stated in judgment· [2014] KEELRC 1041 (KLR)

Dorothy Ndavi v Board Of Management Of Kenya High School & 3 others [2014] KEELRC 1041 (KLR)

Industrial Court of Kenya
9 June 2014
NMNzioki wa Makau
1,387 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court refused to reinstate a dismissed storekeeper at an interim stage, holding that reinstatement can only be granted after a full hearing.

What this practically means

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Executive summary

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This was an interlocutory ruling of the Industrial Court at Nairobi (Nzioki wa Makau, Judge) on the Claimant's Notice of Motion dated 31st December 2013. The Claimant, formerly Stores Keeper/Procurement Assistant and Head of the Procurement Unit of the 1st Respondent, sought interim orders staying her summary dismissal, compelling unconditional reinstatement with full salary and benefits, preserving her residence within the Respondent's premises, and prohibiting the recruitment of a replacement, pending hearing of the main claim. She alleged her dismissal was unconstitutional, procedurally unfair and driven by the personal interests of the 3rd and 4th Respondents. The Respondents, through a Replying Affidavit of Rosemary C. Saina, asserted poor performance, a show-cause process, and that the Claimant voluntarily resigned at a meeting on 3rd December 2013. Both parties filed written submissions. The Court framed two issues: entitlement to injunctive relief concerning employment and housing, and entitlement to interim reinstatement. Applying the Giella v Cassman Brown three-tier test, the Court held the remedies sought were compensable in damages and that reinstatement under Section 12(3)(vii) of the Industrial Court Act and Sections 49 and 50 of the Employment Act 2007 could only follow a full hearing. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the Claimant met the Giella test for interlocutory injunctive relief

Holding

The injunction was refused because damages would be an adequate remedy and the Court lacked the full factual picture at that stage

Reasoning

The Court applied the three-tier Giella test, noting that at the interlocutory stage it had the benefit of the Respondent's Replying Affidavit showing a resignation process. The remedies sought were compensable in damages, so the irreparable harm threshold was not satisfied and the injunction was not fit for grant.

p. 3
02

Whether reinstatement can be granted at the interlocutory stage

Holding

No - reinstatement is reserved for the final determination after a hearing

Reasoning

The Court held that reinstatement powers under Section 12(3)(vii) of the Industrial Court Act and Sections 49 and 50 of the Employment Act 2007 are exercisable after hearing the parties on the merits, not on a preliminary motion. The interim reinstatement and stay orders sought therefore failed.

p. 3

Legal principles established

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  • Reinstatement of an employee should not be ordered at the interlocutory stage but only after a full hearing, under Section 12(3)(vii) of the Industrial Court Act and Sections 49 and 50 of the Employment Act 2007.
  • The Giella v Cassman Brown three-tier test governs interlocutory injunctions.

Court orders

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  1. 1.The injunction sought (including interim stay, reinstatement, preservation/prohibitory orders) is dismissed with costs to the Respondent

Authorities

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Legislation

  • Public Procurement and Disposal Act2005
  • Industrial Court ActSection 12(3)(vii)
  • Employment ActSections 49 and 50

Cases cited (8)

  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358
  • Mrao Ltd v. First American Bank of Kenya Ltd & 2 others
    [2003] KLR 125
  • Timothy John Bukibinga Igaga v DT Dobie & Co. (K) Ltd
    Cause 1417 of 2012
  • Engineer Stephen Gichuki v The Kenya Airports Authority
    Cause 1464 of 2012
  • Dinah Musindarwezo v African Women's Development and Communication Network (FEMNET)
    Cause 1390 of 2012
  • Alfred Nyungu Kimungui v Bomas of Kenya
    Cause No. 620 of 2013
  • Professor Gitile J. Naituli v Multi Media University College & Another
    [2013] eKLR
  • Tailors & Textiles Workers Union v Summit Fibres Ltd
    [2013] eKLR
Jurisdiction invoked
Industrial Court Act, Section 12(3)(vii); Employment Act 2007, Sections 49 and 50

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Dorothy Ndavi v Board Of Management Of Kenya High School & 3 others [2014] KEELRC 1041 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1041/eng@2014-06-09

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