Richard Muimo Parsitau v Kajiado County Government & 2 others [2014] KEELRC 1384 (KLR)
The bottom line
#A Kajiado County official fired without a hearing won an order blocking his replacement, but the court refused to reinstate him before a full hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioner demonstrated a prima facie case with a probability of success
Yes - the undisputed absence of a hearing before dismissal, non-compliance with the Ad-Hoc Committee recommendations and alleged discrimination establish a prima facie case
The court found the Petitioner was never given a hearing by the 1st Respondent before dismissal and was never given a copy of the investigation report said to have found him guilty. Section 41 of the Employment Act requires a hearing before termination, and natural justice and fair administrative action require a fair hearing before adverse action. The Respondents did not deny the specific allegations of failure to observe natural justice and discrimination in reinstatement, so the Petitioner had high chances of success.
Whether damages would be an adequate remedy such that no injunction should issue
No - since the Petitioner seeks certiorari to quash the dismissal and return to office, the position must be preserved pending trial
The court reasoned that if the interlocutory injunction were refused and the position filled, the Petitioner could not be restored to work even if the petition succeeded. Preservation of the status of the office was therefore necessary, satisfying the irreparable-injury limb of the Giella test as adapted to employment matters.
Whether reinstatement should be ordered at the interlocutory stage
No - reinstatement can only be granted after a full hearing establishing unfair termination
Section 49(3) of the Employment Act as read with Section 12(3)(vii) of the Industrial Court Act, 2011 permits reinstatement only after concluding the employee was unfairly terminated and considering the Section 49(4) factors, which requires a full hearing. Relying on Rika J in Joab Mehta Oudia and Ibrahim J in MUHURI, the court held it must not make final findings at the interim stage.
Legal principles established
#- An employee must be given a hearing before termination of employment; absence of a hearing establishes a prima facie case of unfair termination
- Courts are reluctant to order reinstatement at the interlocutory stage because it would grant final relief before full hearing
- Where certiorari quashing the dismissal is sought, the vacant position must be preserved by injunction pending determination so the petitioner can return if successful
Court orders
#- 1.An order of injunction restraining the 1st and 2nd Respondents from filling the position of Executive Committee Member for Lands, Physical Planning, Environment, Natural Resources and Wildlife pending the hearing and determination of the petition
- 2.Costs of the application to be in the cause
- Jurisdiction invoked
- Industrial Court Act (powers to grant temporary injunction for ends of justice to be met); Employment Act; Industrial Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Richard Muimo Parsitau v Kajiado County Government & 2 others [2014] KEELRC 1384 (KLR)", Case Analysis (2014). Petition No. 43 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1384/eng@2014-10-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.